In 2007, the National Labor Relations Board (NLRB) issued a decision that held that an employer may prohibit employees from using the employer’s email system to communicate in the workplace about the employees’ terms and conditions of employment. Essentially, this decision prohibited employees from using their employer’s email system to engage in union–organizing activity.
In December 2014, the NLRB reversed its 2007 decision. In the 2014 case, the employer, Purple Communications, Inc., had an electronic communications policy requiring that the company computers, Internet and email be used for business purposes only. The policy prohibited employees from using the company computers or email on behalf of organizations with no professional or business affiliation with the company. The NLRB held that this policy violated the National Labor Relations Act. It held that employees have the right to use their employer’s email system during non-working hours to send union-organizing information and to discuss the terms and conditions of employment.
In overturning the 2007 decision, the NLRB held that the former decision “under valued” the employees’ rights to communicate in the workplace about the terms and conditions of their employment, and gave too much weight to the employer’s property rights. The NLRB also observed the increasing importance of email as a means for communication and found that personal use of employer email is common and usually accepted by employers.
Under the decision, the NLRB established a presumption that employees who have access to their employer’s email system also have the right to use that email system to discuss their terms and conditions of employment, including union–organizing efforts. To limit such communications, the employer must show that the restriction is necessary to protect the employer’s interests and must demonstrate a connection between that interest and the restriction the employer seeks to impose.
This new ruling by the NLRB creates challenges for employers.
- Although employers can limit the employees from sending non-work emails during work time, the NLRB does not say how an employer can prevent employees from reading non-work emails during work time.
- The NLRB has provided no guidance on what types of restrictions on electronic communications may be lawful under its new framework.
- Some employers prohibit non-exempt employees from using email during non-work hours so that the employers comply with wage and hour rules regarding overtime. The NLRB does not indicate whether employers can still impose this restriction in light of its decision that employees are allowed to use email to communicate about union activities during non-working hours.
For guidance on these and other issues that you may encounter regarding employee’s use of email, contact our employment lawyers for guidance and advice.