About-face: The NLRB Now Requires Employers to Permit Email Access for Communications About Working Conditions

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The National Labor Relations Board (the “NLRB”) ended 2014 with a flurry of activity, including a key decision on employee use of company email systems. In an anticipated about-face, the NLRB reversed its earlier position and held that employee use of a company’s email system on non-work time for activities protected by the National Labor Relations Act must be permitted if an employer allows employees access to their email system in the course of their regular work. See Purple Communications.

In a 2007 decision, the NLRB held that employers could prohibit employee use of company email for communications about the protected activity, such as union organizing and terms and conditions of employment. However, with the composition of the NLRB much-changed in 2014, the Board reversed course in Purple Communications finding that the use of company systems to communicate about protected activity is an important means of protecting employees’ “core Section 7 rights” to engage in protected communications. The NLRB rejected the employer’s argument that such use impinges the employer’s “property rights” finding that the employees’ rights far outweighed any imposition on employers.

This ruling does provide a narrow exception. An employer is permitted to restrict non-work use of email in the event a legitimate business necessity requires email restrictions in order to maintain production and discipline. Even if an employer suspects they may fall under the NLRB’s legitimate business exception, the exception is vaguely worded. Practically speaking, this means that the exception’s meaning will likely be determined by the NLRB on a case-by-case basis and, thus, still opens any employer’s policies up to scrutiny.

Employers should pay close attention to this decision because existing policies which include out-right bans of non-work related use of email are impacted by this decision, and could become subject to scrutiny by the NLRB. However, employers should also note the scope of the NLRB’s decision. Employers are still permitted to monitor employee email activity and are not yet required to open up email systems to third party non-employees’ communications.

Purple Communications is a reminder that with the changing composition of the NLRB, no outcome is ever “forever.” One thing is certain, however, with the gray areas left by the NLRB in the Purple Communications case and evolving technology, this decision is not the last we’ll hear about this issue.

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