Employment Law Blog

News, trends and analysis in employment law and HR

Dec 12, 2014

Alert: Employees may use company email for protected communications

Labor Relations 

The National Labor Relations Board decided yesterday that if an employer gives employees access to its email system in the course of their work, those employees are entitled to use their email to band together to discuss their wages, hours, and working conditions during non-working time.

The National Labor Relations Board decided yesterday that if an employer gives employees access to its email system in the course of their work, those employees are entitled to use their email to band together to discuss their wages, hours, and working conditions during non-working time. In other words, just as employees have historically been allowed to hold face-to-face discussions about work-related issues during nonworking time, while on company premises, that rule now extends to their non-work-time use of email (Purple Communications, Inc. and Communications Workers of America, AFL-CIO, NLRB, Dec. 11, 2014).

Section 7 of the National labor Relations Act (NLRA) gives most non-management employees the right to communicate with each other at work regarding union organizing, self-organization, and other terms and conditions of employment that affect two or more workers. Employees can talk about work issues—and even gripes—at the jobsite, so long as those discussions take place during non-work time.

Employers may be concerned that a disgruntled employee might use the company email system to “stir the pot” with mass emails advocating for change. In the past, company email systems were seen as the employer’s private property, giving the company the ability to restrict non-work-related solicitations as long as its enforcement was nondiscriminatory. In 2007, the Board affirmed that principle (Register Guard, NLRB, Dec. 2007).

The Board has now overruled Register Guard and dramatically expanded employee rights to use company email for communications about workplace issues. The Board found that since the use of email as a common form of workplace communication has expanded dramatically in recent years, the former rule no longer squares with the reality of the workplace. It found that Register Guard’s analysis failed “to adapt the Act to changing patterns of industrial life,” that it was unsupported by the precedents on which it relied, and that it “failed to protect employees’ right to engage in activity protected by the Act while on non-working time.”

The Board observed that in today’s workplace, email “is fundamentally a forum for communication.” It cited several studies, including an April 2014 report by the Radicati Group, Inc., that found “[e]mail remains the most pervasive form of communication in the business world” and therefore ruled 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.”

Tips: The Board’s decision has a few limitations to be aware of, specifically:

  • The decision applies only to employees who already have access to the company email system and use it in the course of their work. You don’t have to create email accounts for your employees who don’t already have them.
  • The decision doesn’t allow nonemployees (for example, union organizers) to use the company email system. (Actually, this issue wasn’t brought up before the Board in this case, so stay tuned—it remains to be seen how the Board might address the issue of nonemployee email access. From a practical standpoint, though, keep in mind that it’s already very easy for an employee to forward a union-organizing email from their personal account to their work account, and then forward it to coworkers. The Board’s new decision now protects the employee’s actions, as long as they occur outside of work time.)
  • The Board didn’t address other electronic communication systems beyond email, such as using personal mobile devices or accessing personal social media accounts at work. Those issues remain to be decided, but we anticipate that the Board may apply similar principles. Vigilant will keep members apprised.
  • You may totally ban non-work use of email (including Section 7 use during nonworking time) if you can show there are special circumstances that make the ban necessary to maintain production or discipline. Banning all non-work use of email isn’t particularly practical for most employers or likely to be approved by the Board, though.
  • The one small piece of good news in the Board’s decision is that you are allowed to have a uniform rule prohibiting large attachments, audio/video files, or other practices that negatively impact bandwidth and storage space, if you can prove such a rule is necessary to keep your email system functioning properly. You may also have a standard practice of monitoring email use or content for legitimate business reasons (such as preventing harassment or the accessing of prohibited content), as long as you don’t focus on protected activity.  

The Board will apply this decision retroactively to all pending cases, and starting on the date of the decision for all other employers. That means that if your current policy violates this new rule, it would be wise to change it now.

Do you need to review your company email policy and your non-solicitation policy to ensure they protect corporate interests but still comply with employees’ statutorily protect communication rights? Contact your Vigilant employment attorney and see our Legal Guides, “Employee Postings in the Workplace: What Can the Company Prohibit?” and “No-Solicitation Policies”.

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