NLRB Ruling Prohibits Employers From Banning Non-Work Use of Company Provided Email

December 22, 2014

In a recent decision, the National Labor Relations Board ("NLRB" or the "Board") found that employees who have been provided access to their employer's email system are entitled to use the system to engage in statutorily protected discussions during non-working time and that, absent "special circumstances," it is unlawful for employers to impose a complete ban of non-business use of its email systems. The decision overturns a ruling that the Board issued in December 2007, holding that an employer could ban all non-business email communications, including communications protected by the National Labor Relations Act (the "Act"). The decision applies to union and non-union employers and applies retroactively.

The employer's electronic communications policy at issue in the case Purple Communications, Inc. 361 NLRB No. 126 (December 11, 2014) provided in part that the employer's electronic systems and equipment "should be used for business purposes only." The policy also specifically prohibited employees from using the employer's equipment to engage "in activities on behalf of organizations or persons with no professional or business affiliation with the Company" and from "sending uninvited email of a personal nature." The Union maintained that the policy interfered with the employee's statutorily protected rights to communicate under Section 7 of the Act.

The NLRB's decision making it unlawful for employers to impose a complete ban of non-business use of its email is limited in several respects. First, the Board's decision only applies 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 employees with such access.

Second, an employer may justify a complete ban on non-work use of email, including statutorily protected use during non-working time, if the employer can demonstrate "special circumstances" that "make the ban necessary to maintain production or discipline." The NLRB noted, however, the unlikelihood that any employer would be able to meet that burden, explaining that "it will be the rare case where special circumstances justify a total ban on non-work email use by employees."

Third, the decision does not address email access by non-employees, nor does it apply to any other type of electronic communication systems.

Employers Can Maintain Their Right to Monitor Company Email
Significantly, the decision permits employers to continue to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability. The decision further adds that its decision does not preclude an employer "from notifying its employees, as many employers also do already, that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer's email system." The decision warned, however that employers may not change "its monitoring practices in response to union or other protected, concerted activity."

Implications for Employers
Employers should carefully review their electronic communications usage policies, particularly concerning employee usage, and make the following changes in accordance with the Board's recent ruling:

  • Rescind policies which contain a complete ban of non-business use. While the Board suggested that a complete ban of non-business use of company email would be permitted if the employer could demonstrate "special circumstances," this is a high burden which will be met in "rare" circumstances. Accordingly, most employers will be required to rescind their policies that impose a complete ban on non-business use of company email.
  • Draft detailed guidelines concerning non-business use of company email. Employers should establish specific guidelines for non-business use of company email in accordance with the Board's recent decision:
    • The employees' right to use company email for non-business use, including Section 7 activity, may be limited to "non-working time." Accordingly, employers should consider expressly imposing that restriction in their electronic communications usage policy.
    • Employers are permitted to establish "uniform and consistently enforced controls over its email system" in order to maintain productivity and discipline. For example, an employer's electronic communications usage policy may limit the size of messages and the inclusion of attachments. It can also prohibit employees from engaging in illegal activity on employer-provided email systems.
    • Employers are permitted to monitor and review all emails that are sent or received on its email systems for legitimate management reasons. Employers should expressly advise its employees that it may monitor and review all emails that are sent or received on its email systems and that employees should have no expectation of privacy with respect to emails that are sent or received on its email systems.
  • No discrimination against Section 7 activity. Employers should ensure that any controls put in place with respect to their electronic communications usage policy are enforced in a way that does not discriminate against Section 7 activity.

For more information on this issue or other employment matters, please contact:

Carol M. Goodman at [email protected] or +1 212 592 1465.

© 2014 Herrick, Feinstein LLP. This alert is published by Herrick, Feinstein LLP for information purposes only. Nothing contained herein is intended to serve as legal advice or counsel or as an opinion of the firm.