Contrary to recent National Labor Relations Board decisions (the Board), the Board has just ruled in a 3 to 2 decision that employees have the right to use their employer’s email system for non-business purposes, including communicating about Union organizing, as long as it is done during non-work time (breaks and lunch time). In prior decisions, the Board has held that if an employer prohibits personal use of the company email, they can likewise prohibit its use for Union’s solicitation or engaging in Union activity. This decision continues the trend of the Board by expanding the rights and protection of employees in the work place, and placing further restrictions on traditional management rights to govern its workforce and control the use of its property.
In so deciding, the Board held: “consistent with the purposes and policies of the Act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” This decision will likely invalidate many policies in companies’ handbook and agreements which restrict employees’ use of email for personal communication. Because the Board decision will likely be appealed to an appellate court, employers may wish to wait until court review before making wholesale changes to their email policies. We will continue to follow these developments.