Work it Out Blog

NLRB Decision May Require Change to Personnel Policies

Dec 11, 2014 by Jill C. McQueen

On Thursday, December 11, 2014, the National Labor Relations Board handed unions a powerful new organizing tool when it held that workers must be permitted to use employer-run email systems for non-business purposes, including union activities.  The NLRB weighed employer property rights against worker communication rights, but ultimately upheld the rights of employees to use employer-provided email during nonworking hours for activities that are protected by section 7 of the NLRA.

“Consistent with the purposes and policies of the [NLRA] 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 nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

This decision overrules the Board’s 2007 Register Guard decision, which held that employees had no statutory right to use employer email for activities protected under section 7 of the NLRA.  According to today’s decision, the Board believes that the “Register Guard analysis was clearly incorrect,” and that it had a negative impact on workplace communications.  Both decisions came from a sharply divided NLRB.

Today’s NLRB holding recognizes some limitations that favor employer interests:

  • The decision only applies to employees who have already been granted access to the employer-run email system in the course of their work.  Employers will not be required to provide such email access. 
  • Employers may be permitted to ban all non-work use of email if they can demonstrate special circumstances related to production or discipline that would necessitate such a ban.  
  • Where special circumstances for a ban cannot be shown, the employer may be justified in enforcing uniform controls over employee emails for production and discipline purposes.
  • This decision does not apply to non-employee use of email, or any other type of electronic communication.

In response to the Board’s holding, employers should carefully revisit their email and other electronic communications policies and consider removing universal prohibitions on employee use of employer-provided email for non-business purposes.  Such prohibitions could be viewed as a restriction of concerted activity in violation of the NLRA.

For more information please contact your Employment Law Attorney or email Jill McQueen at jcmcqueen@dayketterer.com.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.