On December 11, 2014, the National Labor Relations Board (NLRB) issued a decision that will have a far-reaching impact on employers’ ability to control their employees’ use of company email systems. Specifically, the NLRB held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” Therefore, if an employer allows its employees to use the company email system for work, then that employer must also permit those employees with email access to use the company email system (during non-work time) to discuss (1) the terms and conditions of employment, and (2) efforts to unionize.
Many employers, especially small companies, think of the NLRB—if at all—in terms of striking Appalachian coal miners and manufacturing plants, such as the textile mill where Sally Field so famously folded towels in the movie Norma Rae. However, even small employers that would never anticipate any involvement with a labor union must be aware of the NLRB’s recent decision, because of its broad application.
Although the NLRB believes that its recent decision “is carefully limited,” its decision will, instead, require employers throughout the country to reconsider their email policies for employees. While employers may, understandably, want to limit their employees’ use of a work email system to work matters, such policies will have to permit (or at least not expressly prohibit) employees’ use of the company email system to discuss the terms and conditions of their employment and efforts to unionize, during non-working hours.
The NLRB’s decision does not require an employer to grant email access to employees; however, the decision will apply to all employees who have such access.
Also, although the NLRB acknowledges that “an employer may justify a total ban on nonwork use of email [for all purposes], . . . by demonstrating that special circumstances make the ban necessary to maintain production or discipline,” it is highly likely that this potential exception offer much, if any, relief to employers.
Therefore, employers with company email systems, must be careful to ensure that their email policies are not overly restrictive in light of the NLRB’s recent decision, which is a true about-face with regard to its prior and long-standing position regarding email.