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Late last year, the National Labor Relations Board (NLRB) held 3-2 that “an employer that gives its employees access to its email system must presumptively permit the employees to use the email system for statutorily protected communications during nonworking time.”

This decision allowing employees to use employer email systems is a reversal of a 2007 Register Guard ruling by the board that employees have no right to use the email system of an employer, and diminishes employers’ property rights in a favor of employees’ rights to engage in union organizing and other protected concerted activity under section 7 of the National Labor Relations Act (NLRA). It also provides unions with a very useful communication tool in the organizing process.

In this decision, the board stated, “We believe, as scholars have pointed out, that the Register Guard analysis was clearly incorrect.” They further stated, “The consequences of that error are too serious to permit it to stand. By focusing too much on employers’ property rights and too little on the importance of email as a means of workplace communication, the board failed to adequately protect employees’ rights under the act and abdicated its responsibility to adapt the act to the changing patterns of industrial life,” the board stated.

The board noted that the decision “is carefully limited.” And that “it applies only to employees who have already been granted access to the employer’s email system and does not require employers to provide such access. Second, an employer may justify a total ban on non-work use of email, including Section 7 [of the National Labor Relations Act (NLRA)] use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.”

While the board states the decision “is carefully limited” and still allows bans based on special circumstances, employers must carefully consider whether their business and operations can really justify these. Monitoring emails and computer systems is still allowed; however such monitoring may also expose employers to allegations that this activity may be regarded as unlawful surveillance of employees’ Section 7 activity.

This will be an area for employers to watch and consider when allowing/monitoring use of their email systems. Employers will need to proceed with caution prior to taking action against employees for use of company email systems as this may be perceived as “chilling” (a NLRB board term) employees’ Section 7 rights under the NLRA.

See the following NLRB web link for the full decision: Purple Communications, Inc.  (21-CA-095151 and 21-RC-091531 and 21-RC-091584; 361 NLRB No. 126)  Corona and Long Beach, CA, December 11, 2014.

For questions or support regarding this or other employment issues, please contact KMA.