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Employees can use employer email systems for protected concerted activity

December 12, 2014

In a highly anticipated 3–2 decision, the National Labor Relations Board ruled in Purple Communications, Inc. that a company policy prohibiting employee use of its email system for non-work-related messages was unlawful. In doing so, the NLRB overruled its seminal Register Guard decision from 2007, which held that an employer may prohibit employees from using its email system for protected communications – such as soliciting employees to support a union or complaining about working conditions – so long as the ban is not applied in a discriminatory fashion. Now, the NLRB has established a new presumption that employees who have access to their employer’s email system in the course of their work have a right to use the email system for protected concerted activities during non-working time.

The NLRB limited the presumption in two nominal ways. First, the presumption applies only to employees who already have access to the employer’s email system in the course of their work. There is no new requirement to provide email access if employees do not already have it. Second, in rare cases, an employer can completely prohibit non-business use of email (including protected communications on non-working time) by demonstrating that special circumstances make the ban necessary. Absent such special circumstances, an employer may only apply uniform and consistent controls over its email system to maintain production and discipline, such as monitoring emails and prohibiting large attachments and audio/video files.

This case is yet another reminder that the NLRB continues to have an expanding and activist role in non-unionized workplaces. As with the Board’s recent focus on social media and handbook policies (see below for links on previous alerts on social media and handbook policies), this decision requires employers to revisit their personnel policies. Specifically, employers should carefully evaluate any electronic use policies that completely prohibit the use of email systems for non-work-related messages. Please contact one of Honigman’s Labor and Employment attorneys listed on this alert, if you have any questions about this decision or would like assistance reviewing your policies.

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