NLRB Protects Employees’ Right to Use Employer-provided Email to Engage in Protected Activity

The National Labor Relations Board (“NLRB”) recently issued a decision restricting employers’ rights to regulate employee email use. In Purple Communications, Inc. and Communication Workers of America, AFL-CIO, the NLRB held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” This ruling reverses prior NLRB precedent, which found that employer-provided email accounts were the employer’s property, and therefore subject to limitations imposed by the employer. Under prior law, an employer could prohibit employees from using their employer-provided email for personal reasons, regardless of whether the employee was on the clock.

In Purple Communications, the NLRB found that an employer had committed an unfair labor practice through several employee handbook policies. Specifically, the NLRB took issue with employer’s policies requiring that email “be used for business purposes only” and prohibiting email use to “engag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or “send[] uninvited email of a personal nature.” The NLRB reasoned that these handbook policies restrict employees’ rights to engage in protected activity.

The NLRB’s ruling is not absolute, however. This ruling does not require employers to provide all employees with email access, and it does not protect employees who use their email for non-business purposes during working time. The ruling also noted that some employers may have “special circumstances” that warrant email restrictions that would normally constitute an unfair labor practice. Even so, the NLRB’s decision provided little guidance on what may constitute “special circumstances,” saying only that “special circumstances” would have to be based on “the nature of the employer’s business” and advising that those circumstances would be “rare.”

Protecting employees’ use of employer-provided email to engage in protected activity may affect other policies as well. For example, employers who routinely monitor employee email use may open themselves up to allegations of unlawful surveillance. To avoid additional exposure to surveillance charges, employers should consider developing standardized email monitoring practices.

As many employers have policies limiting employee email use or practices of monitoring employee email use, it would be wise to review those policies and practices for compliance with this new development in NLRB law.