NLRB Takes Over Company Email

On December 10, 2014, a divided National Labor Relations Board voted along party lines to overturn existing precedent and rule 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.”

In so finding, the NLRB determined that its old rule focused too much on employers’ property rights and too little on the importance of email as a means of workplace communication and that prohibiting employers from controlling their internal email systems was necessary to “adapt the Act to the changing patterns of industry life.”

It is not difficult to construe a communication as being a “protected communication” under Section 7 of the National Labor Relations Act, which gives employees the “right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The Board majority did allow two extremely narrow exceptions to this new rule.  First, an employer may totally ban non-work use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline.  It is extremely unlikely that an employer can meet this standard.  Second, an employer may “apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”  This standard will also be extremely difficult for employers to meet.

Finally, the Board left the door open to expand this doctrine by noting that “we do not address email access by non-employees,” which may foreshadow future Board action permitting non-employees to access employers’ email systems for purposes of union organizing.

A copy of the Board’s 74-page decision can be found here.

It’s a Brave New World…

View All News