On December 11, 2014, in Purple Communications, Inc. and Communications Workers of America, AFL–CIO. Cases 21–CA–0951 51, 21–RC–091531, and 21–RC–091584, the National Labor Relations Board 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.”  This reversed the Board’s previous 2007 holding in Register Guard, which held that employees do not have a right to use their employers’ email systems for Section 7 purposes.

The Board reasoned that “[i]n many workplaces, email has effectively become a ‘natural gathering place,’ pervasively used for employee-to-employee conversations” and, therefore, company email is “[central] to employee discussions, including their Section 7-protected discussions about the terms and conditions of employment.”

The Board stressed that its decision is “carefully limited” as follows: 

  1. It applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require an employer to provide such access; 
  2. An employer may justify a total ban on non-work use of email (including Section 7 use on non-working time) by demonstrating that special circumstances make the ban necessary to maintain production or discipline; and 
  3. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline. 

The Board also stated its ruling “does not address email access by nonemployees, nor … any other type of electronic communications systems.” 

Because this ruling applies to all employers, whether or not they are unionized, all employers should review their electronic communications policies to ensure they are not in conflict with the Board’s newest ruling.