You Can Use Company E-mail to Organize a Union but Not to Organize a Bake Sale

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The First Amendment doesn’t stop companies from cracking down on their employees’ speech. So your boss can ban you from using work e-mail to share funny cat gifs, or organize a bake sale, or mourn the passing of your favorite celebrity. But now your boss can’t ban you from using work e-mail to organize a union.

In a party-line 3-2 decision (pdf), the National Labor Relations Board ruled Thursday that employees who use company e-mail to do their jobs can also use it to organize to improve them. That includes trying to form a union as well as other forms of collective action at work. Under the new ruling, companies can still impose some restrictions on the kind of e-mails they allow on their servers (such as no gigantic attachments), and they can still keep tabs on their employees’ e-mail activities, though they can’t single out union activism for scrutiny. But outside of rare exceptions, companies can’t prohibit e-mailing your co-workers to try to transform your workplace.

That new decision overturns a precedent from just seven years ago, when Republicans who then had a majority on the labor board wrote (pdf) that it would be kosher to allow e-mail solicitations for the Salvation Army but not for a labor union. “The consequences of that error are too serious to permit it to stand,” the three Democrats who now hold a majority on the NLRB wrote. “Neither the fact that e-mail exists in a virtual (rather than physical) space, nor the fact that it allows conversations to multiply and spread more quickly than face-to-face communication, reduces its centrality to employees’ discussions, including their [National Labor Relations Act] Section 7-protected discussions about terms and conditions of employment,” they argued. “If anything, e-mail’s effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication.”

In siding with employees yesterday, the NLRB rebuffed arguments that allowing pro-union e-mails would increase the risk of computer viruses; that employees don’t need to organize over work e-mail because they have Facebook and Twitter; and that forcing companies to let their Internet servers be used to spread pro-union messages they disagree with would violate employers’ First Amendment rights. “E-mail users typically understand that an e-mail message conveys the view of the sender,” the majority wrote, “not those of the e-mail account provider.”

The NLRB’s new approach to organizing over work e-mail accounts echoes a series of decisions in recent years that protect workers’ right to use Facebook and Twitter to talk about how to improve their jobs. For most other speech, companies have free rein to punish their employees for what they say online, even if they do it on their day off. Chatter about banding together and organizing is one of the only things companies are legally prevented from silencing—even if it’s something they would most like to choke off.

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