NLRB Holds That Employees Can Use Company Email for Union and Other Protected Communications

In December of 2014, the National Labor Relations Board (“the Board”) held that Section 7 of the National Labor Relations Act (“NLRA”) requires employers to allow employee use of company email, during non-working time, to communicate regarding union activities and terms conditions of employment. Purple Communications, the employer, had a policy essentially prohibiting employees from using company email for non-business reasons.  A union filed a complaint alleging that the policy had interfered with election results, and also violated Section 7 on its face.

In siding with the union, the Board overturned its own 2007 decision in Register Guard permitting employers to prohibit employee use of email for Section 7 purposes.  The Board reasoned that email is a critical method of communication, and has become “effectively a new natural gathering place” for employees.  The Board did state that an employer may still ban non-business use of email by showing “special circumstances”, but also expressed skepticism that an employer would be able to make such a showing except in rare cases.

Key details about this decision:

1.  It is limited to email only at this point (but could later be expanded to text messaging, social media, etc.)

2.  It applies only to employees who have already been given access to employer email, and does not require an employer to provide email access to all employees. It also does not grant email access to non-employees.

3.  It applies to all employers, not just union employers.

4.  It only applies to policies concerning emails during non-work time.  Employers can still prohibit emails for non-business reasons during work time.

5.  It does not prohibit employers from continuing to monitor email for legitimate business reasons.  However, the Board warned that an employer that changes its monitoring policy in response to union or other protected employee activity will be in violation of Section 7.

It is likely that this decision will be appealed to federal court, and could be stayed pending final resolution.  If not stayed, the decision is enforceable and employers should react accordingly.  In this day in age nearly all employers have email systems.  Employers should review and make necessary revisions to any email policies placing limits on employee use during non-working hours.