NLRB rules in Purple Communications that limiting email use violates workers’ Section 7 rights.
In latest pro-employee action, the NLRB overturns its own precedent to rule that employers must allow use of company email accounts to engage in concerted protected activity, including union organizing.
The Prior Rule
The NLRB held in its 2007 Register Guard decision that employers could prohibit the use of company email for non-business purposes,including engaging in concerted protected activity. Arguing that this failed to recognize the necessity of email in modern workplaces, the NLRB expressly overturns Register Guard.
THE NEW RULE
The Board now presumes that employees with access to company email for work purposes can use it to engage in “concerted protected activity” during non-work times. Employers would have to show special circumstances relating to production or discipline to justify any restriction. The ruling effectively gives special status to concerted protected activity, which it defines very broadly.
DOES YOUR POLICY NEED REVISION?
REVIEW YOUR POLICY
If your policy prohibits personal use of work email, you are at risk of violating the NLRA unless you can show special circumstances to justify the restriction. Any employee could complain to the Board, so we recommend a prompt policy review.
Employers can monitor email for misuse and reduced productivity but may not engage in surveillance. In light of this decision, employers should consult counsel before attempting to police email use.