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Not just your (company) email system anymore!

December 11, 2014

On December 10, 2014, the National Labor Relations Board (Board) ruled in Purple Communications, Inc., 361 N.L.R.B. No. 126, that employees have a right, protected by the National Labor Relations Act (Act), to use an employer’s email system during non-working time for communications protected by the Act (e.g., to discuss union issues or other protected concerted activities protected by Section 7 of the Act). The Board has thus overruled prior precedent, as set out in Register Guard, 351 N.L.R.B. 1110 (2007), that the Act did not give employees the right to use their employer’s email systems for Section 7 purposes.

A copy of the December 10, 2014 Board decision can be found here. The following passage sums up the scope of the Board’s ruling:

First, [this ruling] applies only 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 such access. Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline. Finally, we do not address email access by nonemployees, nor do we address any other type of electronic communications systems, as neither issue is raised in this case.

The Board’s decision may be appealed by the employer, but even if it is not appealed, the email issue will likely continue to be litigated before the Board. For now, employers should review their electronic communications policies to ensure compliance with the Board’s new standards or to, at a minimum, understand their risk.

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