In its long-awaited decision in Purple Communications, Inc., the National Labor Relations Board valued employees’ communication rights over employer property rights. Here, the NLRB invalidated a company policy prohibiting employee use of its employer-provided email system for non-work-related messages. Further, the NLRB concluded that employee use of email for protected communications during non-working time is presumptively an employee right for any employee provided access to a company’s email systems.

The NLRB noted two limitations to this employee right: (1) The NLRB affirmatively held that companies are not required to provide email access to employees. Rather, the right attaches once the employer has granted that access. (2) An employer may justify a comprehensive prohibition of non-work-related emails by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Without a justification for a complete ban, an employer can consistently enforce uniform controls over its email system to the extent such controls are necessary for maintaining production and discipline.

The NLRB declined to address email access by third parties or other types of electronic communications systems, as they were not at issue in the case.

Once again, an NLRB ruling will force employers to revisit their personnel policies and revise electronic-use policies that universally prohibit non-work-related messaging through employer-provided email systems.

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