Overturning existing precedent, the NLRB has ruled that certain employees have a right to use employer email systems for protected communications, unless special circumstances exist. This decision potentially has far-reaching implications and all employers who allow employees to access their email systems should promptly review their policies and practices in light of this decision.
Specifically, on December 11, 2014, the National Labor Relations Board ("NLRB" or the "Board") issued a 74-page decision in Purple Communications, Inc. and Communications Workers of America, AFL–CIO. Cases 21–CA–0951 51, 21–RC–091531, and 21–RC–091584, holding that workers have a right to use their employer's email systems for non-business purposes, including communicating about union organizing and the terms and conditions of their employment. This decision overrules the Board's 2007 ruling in which it had held that an employer may prohibit employees from using their email system for any non-business purpose, including protected communications, even if employees were otherwise permitted to access the employer's system. In this new decision, the Board appears to justify its change, in part, by explaining that it is recognizing that email has become a critical means of communicating in the current work environment. In particular, the Board opines that advances in email and computer technology have virtually eliminated the burden on the employer's equipment.
The new decision applies only to employees who already have been granted access to their employer's email system in the course of their work. The ruling does not require employers to extend permission to access to employees who otherwise do not have such authorization. The decision also does not apply to non-employees. Further, the decision applies only to employee use of email for statutorily protected communications during non-working time. Such protected communications include communications about the terms and conditions of employment, including union organizing. Significantly, the decision retroactively applies, including having application to the parties in the cases and all other pending matters.
The Board, however, did make clear that employers still may be permitted to prevent employees from using their email systems for non-work purposes. An employer may justify maintaining a policy banning non-work use of its email systems, including statutorily protected communications, if it can point to special circumstances that make the prohibition necessary. Some factors relevant in the determination of "special circumstances" include: excessive costs, the nature of the employer's business, the need to protect the email system from overload or damage from excessive use, and where non-work use of email undermines productivity during work (for example, where an employee composes and sends a protected email while on a break, but others open and read it during work time). Without such a justification, an employer may apply uniform and consistently enforced controls over its email system to the extent necessary to maintain production and discipline.
The Board's decision is limited to the use of email systems—it does not address other types of electronic communications. The decision does not prevent employers from continuing to monitor computers and email systems for legitimate management reasons, however.
Because this decision has a retroactive impact, and applies to all employers, employers should act promptly and review their policies and practices to determine if any changes need to be made at this time.
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