The National Labor Relations Board (“NLRB”) has recently ruled that when employers provide access to their email system to their employees, the employer may generally not ban non-work related emails.  Both union and non-union employees are entitled to use the system to engage in statutorily protected discussions during non-working time. This includes using company email systems for union organizing or any other activity protected by the National Labor Relations Act (“NLRA”). Further, an employer generally cannot impose a complete ban of non-business use of its email system, unless there are “special circumstances.” This NLRB decision overturns a previous ruling issued in 2007, which held an employer could ban all non-business email communications. The NLRB found that the previous decision undervalued employees’ rights under the NLRA to communicate in the workplace about the terms and conditions of their employment.
The NLRB decision has some limitations, however. The decision only applies to those employees who have already been granted email access in the course of their work. This means employers are not necessarily required to provide employees with email access. In addition, the NLRB decision upholds the right of employers to monitor computers and email systems for legitimate management reasons, such as preventing harassment or maintaining productivity. Also, although generally not permitted, an employer can impose a complete ban of non-work use of email if the employer can show “special circumstances” that make such a ban “necessary to maintain production or discipline.” However, this burden is very difficult for an employer to meet. The decision also does not restrict an employer’s right to prohibit non-work emails during “working time.” However, it is worth noting that the NLRB traditionally considers meal periods and work breaks as “nonworking time,” so an employer’s policy should reflect that view. The decision fails to address common complications that can arise in such situations. For example, even if an email is sent by someone during their nonworking time, that email is likely to be received by the recipient during their working time. Employers might find the realities of enforcing “working” versus “non-working” time difficult. An employer should also be careful to avoid circumstances where an employee could bring a potential legal challenge claiming that monitoring occurred in response to a protected activity, such as union organizing. All of this should be kept in mind when considering a stricter email policy.
 Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014).