On December 11, 2014, the National Labor Relations Board held that employees have the right to use employers’ email systems for personal reasons, including for union organizing efforts. The decision, which reverses prior precedent set in a 2007 case, comes as a shocking blow to employers.
The NLRB’s decision applies only to those employees who already have access to an employer’s email system. The NLRB majority explained 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.” In reversing its own precedent, the NLRB stated that the 2007 decision had placed too much emphasis on employers’ property rights while diminishing employees’ Section 7 self-organization rights. The NLRB also relied on the fact that email has become an increasingly popular method of communication since 2007, and thus, limiting use of an employer’s email system to work-related purposes posed an unreasonable hurdle to the exercise of Section 7 rights. The NLRB did note that employers may completely ban non-work-related use of email systems if justified by “special circumstances.” Although it gave no example of “special circumstances” that might justify a ban, the NLRB did confirm that such circumstances “will require that the employer articulate the interest at issue and demonstrate how that interest supports the email use restrictions….”
Dissenting members of the NLRB argued that allowing union communications through employer email accounts was akin to forcing the employer to subsidize speech against it. The dissent also feared that the same rationale could be applied to other facilities maintained by an employer, such as conference rooms or auditoriums. Finally, the dissent voiced concerns that the ruling would threaten workplace productivity.
Given the nature and far-reaching implications of this NLRB decision, it likely will be appealed to a Circuit Court.