As I’m sure many of you are intimately aware, communicating with coworkers via email is central to millions of employees’ roles in the modern workplace. Given email’s ubiquity, employers across the country often maintain email and communications policies in the hopes of regulating what the business email systems can and cannot be used for.
For the past five years, employers would have been wise to carefully craft these policies — or add special carveouts — so that their employees wouldn’t think that the policies prohibited communications about wages, workplace conditions, organization or other labor matters sent during nonworking time. Failure to perform this fine-tuning in policy-drafting left employers open to the risk of an unfair labor practices charge before the NLRB.
This risk has been negated (for the time being) by a recent NLRB decision. Overturning Board precedent from 2014, the NLRB has held that employees do not have a statutory right to use their employer’s email systems to discuss labor issues. Instead, employers have a property right to regulate how their systems are used.
Now there is significantly less risk that a broad email policy will lead to a surprise unfair labor practices charge, so long as the policy is not written to specifically crack down on union or labor discussions. The new Board standard applies unless employees have no other reasonable avenues through which they can discuss labor matters (e.g., face-to-face discussion or communicating through personal media).
While the decision does reduce litigation risk faced by employers, there is still no protection under Board precedent for discrimination against union activity. So an employer that enforces an email policy to prohibit labor communications but does not enforce it in any other circumstances risks being charged with an unfair labor practice, regardless of what the policy states on its face.
Apart from labor considerations, employers should also remember to address other employment issues implicated by their email policy. For example, a good email policy should remind employees to avoid harassing or discriminatory language when emailing coworkers. It’s also a good idea to specifically tell employees to refrain from sending confidential information outside of the organization without the appropriate approvals. Reminders of important principles like these are helpful, particularly when they are regularly enforced.