On December 11, 2014 the National Labor Relations Board (“NLRB”) issued its decision finding that employees had a statutory right to use employer owned e-mail systems for protected communications during non-working periods. The decision overrules a 2007 decision of the NLRB finding that employers may issue and enforce policies prohibiting non-work related e-mail transmissions. See, Purple Communications, Inc. and CWA, 361 NLRB No. 126 (2014). 

Finding that e-mail communications are a primary medium of communications in the modern workplace, the NLRB decision extends an employee’s rights under the National Labor Relations Act to discuss terms and conditions of employment with fellow employees through electronic communications. The respondent, and other employers who filed “friend of the court” briefs, argued that the employer’s ownership of the e-mail software, and network, prohibited the Agency from entitling employees to use that property for non-work related purposes. 

The NLRB stressed that its decision was “limited.” First, the NLRB limited the right to engage in non-work related e-mail transmissions to employees who have already been granted access to the employer’s e-mail system. The decision “does not require employers to provide such access.” However, if an employer does grant an employee access to its e-mail system, it is logical to conclude the employee will be simultaneously entitled to use the system during non-work periods for protected and concerted activity. 

Second, an employer may justify a ban on non-work use of e-mail by demonstrating that “special circumstances” make the ban necessary to maintain production or discipline. However, the burden will be upon employers to make this showing, and the NLRB wrote that it will be the “rare case” where that burden can be met. The NLRB will consider an employer’s interest in protecting its e-mail system from damage or from overloads due to excessive use, but the employer must be prepared to prove that any restrictions it imposes are no more restrictive than necessary based on empirical evidence that the non-work use of e-mail is more harmful or voluminous than employee e-mail that “the employer has authorized.” 

The NLRB wrote that it will permit an employer to apply uniform and consistently enforced controls over its e-mails “to the extent” such controls are “necessary to maintain production and discipline.” For example, the decision recognizes that it is appropriate to limit employees to send and review work related e-mails exclusively during “working time.” Moreover, the NLRB wrote that employers will be permitted to continue to review and monitor working time e-mails without engaging in illegal surveillance of those communications under the National Labor Relations Act. 

However, the NLRB warned that monitoring e-mails in a fashion that was “out of the ordinary” could constitute illegal surveillance. For example, the NLRB wrote that increased monitoring during the period of organizing activity in the workplace or focusing monitoring efforts on protected conduct or union activists may not be lawful under the Act. 

The decision of the NLRB went into effect not only immediately – but retroactively. The NLRB found it would be manifestly unjust not to apply the decision to the case it was resolving, and all pending cases, despite the fact that the decision directly overrules a 2007 decision of the Agency and has never been the rule of law previously.