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NLRB Establishes Right for Employees to Use Company Email for Protected Communications During Non-Working Time

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Michael R. Blum and Frank T. Mamat
Foster Swift Employment, Labor & Benefits E-News
December 12, 2014

In a long awaited decision, the National Labor Relations Board (NLRB) ruled on Thursday, Dec. 11 that as long as workers are granted access to company email, they can use it to discuss workplace issues, including union organization.

The NLRB's 3-2 ruling in Purple Communications, Inc. is a victory for unions and overrules the NLRB's 2007 decision in Register Guard. The NLRB concluded that employee use of email during non-working time is presumptively an employee right for communications that are protected by the National Labor Relations Act.

The NLRB decision is limited in several ways. First, it applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Rather, the right arises only when the employer has granted employee access.

Second, an employer may justifiably prohibit non-work-related email communication by demonstrating special circumstances that make the ban necessary to maintain production or discipline. The NLRB made clear, however, that this exception is a narrow one, noting that it would "be the rare case where special circumstances justify a total ban on non-work email use by employees." Employers who seek to use this exception must "demonstrate the connection between the interest it asserts and the restriction."

Finally, the NLRB decision does not address email access by nonemployees, nor does it address any other type of electronic communications systems. However, as one of the dissenting Board members noted, the Board’s rationale in Purple Communications may well be extended in future cases to any kind of employer communication network.

Even if special circumstances are not present justifying a total ban, an employer may still apply uniform and consistently enforced controls over its email system to the extent necessary to maintain production and discipline.

We expect this decision to be challenged in the federal appellate courts. However, this rule now stands and will be enforced by the NLRB. So, even if an employer’s email policy was legal under prior NLRB precedent, the policy may not be legal anymore. Accordingly, private sector employers must revisit and revise their electronic-use and communications policies to the extent they prohibit - as most do - non-work-related communications through employer-provided email systems.

Please contact an attorney in Foster Swift’s Labor and Employment Practice Group for more information about this ruling and for assistance in revising your company's electronic-use and communications policies.