In a split decision ruling on December 11, 2014, the National Labor Relations Board (“Board”) held that employees have the right to use their employers’ email systems for nonbusiness purposes, including soliciting, distributing and organizing employees.
The Board’s decision is limited to:
- Employees who already have access to their employer’s email system in the course of their work;
- Employee’s only (it does not require non-employee access to email, such as a non-employee organizer);
- Email communication (it does not address alternative communication options using personal electronic devices and other electronic media).
The Board’s decision does not:
- Create a new obligation for employers to provide email addresses for its employees;
- Prevent an employer from establishing or enforcing a total ban on non-work use of email (including Section 7 use) on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. However, absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline. Such restrictions are analyzed case-by-case, and the permissibility of an employer’s restriction will be strengthened significantly if it can show it previously adopted the restriction in order to protect the interest it asserts.
This recent decision (known as Purple Communications) overrules the Board’s 2007 decision in Register Guard holding that employees had no right to use their employer’s email systems for organizing activity. For example, under Register Guard, an employer policy that limited employee use of its email and other electronic systems to “business purposes only” and strictly prohibited employees from using the computer, internet, voicemail and email systems and other Company equipment for (a) engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company; and (b) sending uninvited email of a personal nature, was not overbroad and comported with requirements under the Act. All that changed with the Board’s decision last week Thursday.
Now, employer policies that once complied with the Act pre-Purple Communications will likely be outdated and run afoul of the National Labor Relations Act. Employers should review current policies on email use and consult with legal counsel to ensure its policies are not overbroad yet provide for effective workplace management.