In a striking departure from its prior position, the National Labor Relations Board (“NLRB” or “Board”) has determined that employers who allow employees access to their email systems must allow the employees to use the email system for union organizing purposes during non-working time. Purple Communications, Inc. (Dec. 11, 2014). The ruling rejects a prior NLRB decision that allowed employers to limit their email systems to business purposes as long as they did not discriminate against activities protected under the National Labor Relations Act (“NLRA”).
The Board noted that its ruling applies only to employees who already have been provided access to their employers’ email system. The NLRB also noted that an employer can totally ban the non-work use of email by showing that “special circumstances” make the ban necessary to maintain production or discipline. The Board also indicated that its ruling did not address email access by nonemployees nor electronic communications systems other than email.
In light of the NLRB’s ruling, employers should review their email and other electronic communication policies to ensure they are consistent with the NLRB’s new rule.