NLRB supports an employee right to use employers’ email systems

The National Labor Relations Board said Thursday that employees have a federally protected right to use their employers’ email systems to communicate about union organizing and other work-related purposes, provided they do it on their own time.

The NLRB board, in a 3-2 decision that is one of its most influential workplace rulings of 2014, said employers must permit such activity.

The ruling was read as a victory for union organizers, but reaction from employment law attorneys who represent employers was swift and negative.

“Not only does this decision turn business email platforms into the wild, wild west — it also renders most employer policies on email use illegal and in need of immediate revision,” said Tim Davis, an attorney at Constangy, Brooks & Smith in Kansas City.

Davis said the decision ignores employers’ property rights. Employers have long been able to control use of company property, including use of company email systems.

Matt Ginsberg, associate general counsel at the AFL-CIO, called the decision a common-sense ruling that fits with worker protections provided by the National Labor Relations Act.

“The decision does not break new ground but instead simply applies well-established law regarding the right of employees to discuss working conditions during breaks and other non-working time to the modern context of e-mail communication,” Ginsberg said.

The NLRB board majority decided that once an employer gives employees access to the company email system, the employer can’t restrict what those employees send through that system, as long as it’s work-related and sent off the clock.

The decision in the Purple Communications Inc. case broke along political lines, with the three Democrats on the board voting to protect that employee use rights and the two Republican appointees voting against it. The majority decision overrules a 2007 case that emphasized employers’ property rights.

The new decision focuses on “the use of email as a common form of workplace communications (that) has expanded dramatically in recent years.”

The board clarified that the new decision “applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access.”

The decision also said that employers “may justify a total ban on nonwork use of email” by demonstrating that a ban is “necessary to maintain production or discipline.”

This story was originally published December 11, 2014 at 2:38 PM with the headline "NLRB supports an employee right to use employers’ email systems."