Recently, California’s Public Employment Relations Board (“PERB”) has issued a precedential ruling finding that public employees in California have a statutory right to use an employer’s e-mail system to communicate with each other regarding working conditions and other activities that pertain to subject matter affecting employee organizations. In Napa Valley CCD, PERB adopted the decision of the National Labor Relations Board (“NLRB”) in Purple Communications, Inc. (2014) 361 NLRB No. 126, which had concluded that e-mail “has effectively become a ‘natural gathering place,’ pervasively used for employee-to-employee conversations” in many workplaces. Accordingly, in Purple Communications, the NLRB had mandated that unionized employees under the National Labor Relations Act be permitted to use employer e-mail systems to engage in organizing activities during non-working hours.
In Napa Valley CCD, PERB not only adopted Purple Communications, but took its analysis one step further in determining that California’s labor relations statutes provide even greater protections for public employees. For example, while the Higher Education Employer-Employee Relations Act (“HEERA”) and the Educational Employment Relations Act (“EERA”) allow for union access to bulletin boards and mailboxes (but not expressly e-mail), PERB determined that such language does not limit such rights. To the contrary, PERB held that “employees who have rightful access to their employer’s e-mail system in the course of their work have a right to use the e-mail system to engage in EERA protected communications on nonworking time.” An employer may only rebut this presumption by demonstrating “special circumstances” to justify restricting its employees’ rights. The same rule would apply under similar California labor statutes.
This holding means that an employer policy that prohibits all non-work (i.e., personal) use of email is presumptively unlawful (although an employer can likely mandate that such use occur during non-working hours). Accordingly, public employers would be well-advised to promptly review their policies to ensure compliance with this new rule.
For a fuller analysis, please visit Tim Yeung’s PERB blog at: http://www.caperb.com/2018/06/15/perb-adopts-heighted-version-of-purple-communications/