The National Labor Relations Board (NLRB) recently issued a controversial decision that employees may use their employer’s email system(s), during non-working time, to communicate with each other about workplace issues, such as wages, union organizing efforts, and other terms and conditions of employment. The decision, in Purple Communications, Inc., 361 NLRB No. 126, reversed the NLRB’s 2007 decision in Register Guard, 351 NLRB No. 70, which had held that employees have no statutory right to use their employer’s email system(s) for non-business purposes.
The NLRB premised its shift in policy on the growing importance of email as a means of workplace communication, noting that “e-mail remains the most pervasive form of communication in the world.” Indeed, the NLRB suggested that most employers already accept or at least tolerate some personal use of the employer’s email system(s).
The NLRB’s decision has a few caveats. First, the decision only applies to employees. Employers are not required to allow non-employees, such as union organizers, access to their email system(s) for purposes of communicating directly with their employees. Second, the NLRB’s decision applies only to employees who have already been granted access to the employer’s email system(s) in the course of their duties. The decision does not require employers to provide email access to their employees.
Employers may also rebut the presumption that employees are permitted to use the employer’s email system(s) by showing special circumstances exist that allow the employer to institute a complete ban on non-work email use. Although the NLRB did not say what might constitute “special circumstances,” the NLRB explained that the exception would only apply in rare cases. In more typical cases, employers may apply uniform and consistently enforced controls over their email system(s) to the extent that such controls are necessary to maintain production and discipline, such as prohibiting large attachments and/or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.
In light of the NLRB’s decision, employers should review their employment policies to ensure that it complies with this decision. If the employer maintains any policy that prohibits personal use of its email system(s) during non-working time, the policy would constitute a per se violation of the NLRA.
Editor’s Note: This article was written, and is reprinted with permission, by the law firm of Susanin, Widman & Brennan, P.C., located in Wayne, PA. Susanin, Widman & Brennan, P.C., concentrates its practice in labor law, employment law, employee benefits, and construction law. In addition to construction claims and litigation, the firm provides advice to and representation of management in employment discrimination litigation; sexual and other forms of harassment claims; wage and hour investigations; occupational, safety and health inspections; employee benefits; unfair labor practice charges; collective bargaining negotiations; and labor disputes, union campaigns, strikes, pickets, grievances and arbitrations. Its practice is national in scope, and its clients range in size from small, privately held businesses to Fortune 500 companies. Visit Susanin, Widman & Brennan at www.swbcounsellors.com.