Section 7 of the National Labor Relation Act protects employees’ right to communicate with one another regarding their terms and conditions of employment and to engage in unionization activities at the jobsite. However, the National Labor Relations Board (“NLRB”) historically held that employers may place reasonable restrictions on employees’ conduct and communications while on employer property and while on working time without violating Section 7 rights. Consistent with those holdings, in 2007 the NLRB issued its ruling in, holding that employers could prohibit employees from using the employer’s email system to communicate with each other about union matters or other terms and conditions of employment, even if employees were permitted access to the email system for other purposes.
That all changed with the NLRB’s recent ruling, reversing the decision. Effectively immediately, employees provided access to employer email systems for work activities may now be permitted to use these systems during non-work time for “statutorily protected communications” concerning unionization efforts, salaries and benefits and other terms and conditions of employment. Employers looking to restrict email access for such purposes must demonstrate that the measures are necessary to maintain production, discipline or other “special circumstances” warranting restriction of these employee rights. However, the NLRB cautioned that “because limitations on employee communication should be no more restrictive than necessary to protect the employer’s interests, we anticipate that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.”
In ruling in favor of employee access to email systems for Section 7 activities during non-work time, the NLRB pointed to a recent observation by the U.S. Supreme Court that email has become a fundamental means of communication in the workplace and “some personal use of employer email systems is common and, most often, is accepted and tolerated by employers.” The NLRB concluded that employees’ Section 7 rights trump an employer’s property rights to its communications systems.
In addition, the NLRB blurred the line between permissible email communications during work time and impermissible communications during non-work time, noting “that email use may be somewhat difficult to identify as occurring on working time or nonworking time. But the blurring of the line…reflects far broader developments in technology and the structure of current workplaces (which enable not only the performance of personal business during working time but also the performance of work during nonworking time). Those developments are beyond” the control of the NLRB.
The NLRB acknowledged that its decision is only applicable to employees; it does not expand upon the rights of non-employees (eg: union organizers) to use employer communication systems. Moreover, the NLRB acknowledged that its decision is limited to those employers who chose to provide email access to employees for work purposes, but does not compel employers to provide email access to employees. Finally, the NLRB confirmed that employers may monitor employee emails for legitimate purposes, such as ensuring employee productivity or preventing unlawful harassment of employees through the use of the email system, so long as the employer does not do anything “out of the ordinary,” such as increasing monitoring during a union organizational campaign.
The Bottom Line: As a result, employers who provide employee access to email systems cannot discipline employees for emails to co-workers that relate to wages, discipline, benefits, working conditions and other terms and conditions of employment or to encourage forming a union, provided these communications occur during “non-work” time. The NLRB stated its view that determining when employees are engaged in “non-work” time in the electronic age is an elusive task, suggesting that minimal use of the employer’s email for protected communications during “work time” is most likely permissible provided it is not abused by employees.