NLRB: Limiting Limits on Employee E-mails

An employee’s use of workplace computers and other company provided devices may trigger employer liability. As a result, employers must be careful to tailor policies that protect the employer but don’t go too far. It may be tempting for an employer to consider an outright ban of non-work related e-mail use by employees. Tempting, maybe, but improper according to the NLRB. The NLRB’s recent decision very well could have major implications on an employer’s right to restrict employee e-mail communications.

Last week the NLRB ruled 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 overruled the board’s controversial 2007 Register Guard decision in which it held that employees lacked a statutory right to use work email for communications protected under Section 7 of the National Labor Relations Act relating to collective bargaining or “other mutual aid or protection” communications amongst co-workers.

The board reasoned that in today’s workplaces email has “effectively become a ‘natural gathering place’ pervasively used for employee-to-employee conversations.” The board criticized the majority in the 2007 decision for failure to acknowledge the major role email already played in workplace communication as well as its failure “to adapt the Act to the changing patterns of industrial life.”

The board carefully noted that the decision only applies to employees who have already been granted access to the employer’s email system and does not require employers to provide such access. Additionally, an employer may justify a total ban on non-work use of email, including Section 7 use, if it can provide special circumstances that make the ban necessary to maintaining productivity or discipline. Importantly, the decision does not prevent employers from monitoring employees’ emails for “legitimate management reasons,” such as ensuring productivity, preventing harassment or any other activity that could give rise to employer liability.

It is certainly likely that the new position asserted by the NLRB may be challenged in this matter or a subsequent suit. For now, however, employers should review any electronic-use policies that globally prohibit non-work use of employer email systems. Employers must be able to point to special circumstances to justify such a complete ban. As the board noted it would be a “rare case” where such circumstances exist. Therefore, employers should be wary of policies that impose such a categorical ban and revise any existing policies to conform to the recent decision.