Your employees can use your company email to try to form a union. But for how much longer?

In 2014, the National Labor Relations Board ruled here in a case called Purple Communications that employees can use company email to try to form a union. Specifically, the Board held that “employee use of email for statutorily protected communication on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Yeah, I like my plain English better too.

Fast forward to 2018, and of all the places in the world, a federal appellate court in California — yes California — may be the one to change this.

Hassan A. Kanu at Bloomberg Law reported this story last week.

That is, on July 6, several employer groups (including the lawyers for Purple Communications) wrote this letter to the U.S. Court of Appeals for the Ninth Circuit to argue that recent Supreme Court opinions in Janus v. American Fed’n of State, Cty., & Mun. Emps and Nat’l Inst. of Family & Life Advocates v. Becerra compel the Ninth Circuit to conclude that allowing employees to use company email to discuss unionization violates the First Amendment by compelling employer speech.

In Janus, the Supreme Court held that unions cannot collect “fair share” agency fees from nonconsenting public-sector employees, because that would violate the First Amendment. Becerra involved a First Amendment claim under the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act violated the First Amendment.

In light of Janus and Becerra, the employer groups told the Ninth Circuit that “forc[ing] employers to subsidize employee communication of union messages which the employers do not endorse, infring[es] the employers’ First Amendment rights in a manner that has now been found to violate the Constitution.”

If the Ninth Circuit accepts this argument and undoes the Board’s 2014 ruling in Purple Communications, then companies operating within the Ninth Circuit (AK, AZ, CA, ID, HI, MT, NV, OR, WA) would not have to permit employee use of company email to try to unionize.

Other employers across the country would have to wait for the Board to reverse itself. But, those employers may not have to wait that long. Late last year, the Board’s General Counsel encouraged the Board to reconsider its ruling in Purple Communications. Presumably, given this Board’s complexion, it will do so at the first opportunity.

So, get your employee handbooks and a red pen ready.