In Purple Communications Inc., 361 NLRB No. 126 (December 11, 2014) the NLRB reversed established precedent that employees did not have statutory rights to use their employers’ email resources for union activity. In that case, the Board held that employees that have been given access to their employers’ email systems, must be permitted to use those systems for “protected communications,” that is , communications related to union and other concerted activities, during nonworking time. (See Snell and Wilmer Legal Alert here).
Purple Communications is pending on appeal before the Ninth Circuit.
In Newmark Grubb Knight Frank, No. 28-CA-178893, NLRB Administrative Law Judge Robert A. Cole held on May 10, 2017 that , under Purple Communications, Newmark’s policy that limited employees access to its voicemail and email systems “for business purposes only” was unlawful on its face.
Newmark has appealed and expressly asks the Board to reverse Purple Communications and return to the precedent that employees do not have a statutory right to use their employers’ email systems for non –work related purposes. See here.
Many commentators anticipate that the Trump Board will use this case to reverse Purple Communications. Employers may want to consider following this development to maintain that their policies regarding employees’ access and use of company communication systems are consistent with current law.