NLRB Issues Worker-Friendly Decision Regarding Employee Email Use Posted on January 12, 2015 by Eleanor Smith The National Labor Relations Board has overruled its 2007 decision that said employees have no right to the use their employers’ email systems for personal use on nonworking time. The Board has now decided employee use of company email must be permitted for protected communications on nonworking time. It’s no secret the use of e-mail as a form of workplace communication has dramatically increased in recent years, as is demonstrated by this recent worker-friendly National Labor Relations Board (NLRB) decision. The NLRB decreed on December 11, 2014 that employers must allow their employees to use email for statutorily protected communications on nonworking time if employers have already given employees access to the workplace email communication system. In an effort to adapt the National Labor Relations Act to changing workplace life that reflects current patterns of industrialism, the NLRB determined that email communications in the workplace are more valuable than employers’ right to company property. The Board made clear the decision, which applies to effective communications regarding self-organization and other terms and conditions of employment and is effectively retroactive, is a limited one in two manners: First, it 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 such access. Second, an employer may justify a total ban on non-work use of email when special circumstances, such as production or disciplinary action, apply. Policy prohibiting personal emails “There is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings.” This decision was sparked by a provider of sign-language interpretation services which held a strict policy prohibiting the use of email systems to send emails of a personal nature. Employees objected to this policy, including objections asserting the electronic communications policy interfered with the interpretors’ freedom of choice. Additionally, an unfair labor practices charge was filed, leading to the issuance of the complaint allegation which came before the NLRB. The Board found that the use of email as a means of employee communication within the workplace can hardly be overstated as a necessity. Section 7 of the National Labor Relations Act grants employees “the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid protection.” The Board found, “Such collective action cannot come about without communication.” The Board considered the history of the National Labor Relations Act in making its decision regarding employee email usage. It recognized the importance of the freedom of communication and its connection to the free exercise of organization rights early in the administration of the Act. Because the use of employees’ Section 7 rights necessarily encompasses the right to communicate effectively with one another regarding self-organization on the jobsite, the Board supported the employees’ need to share information and opinions in an acute context such as email. Worker and Union Friendly Not only is this a worker-friendly decision by the NLRB, it is also a union-friendly decision. “The workplace is one where employees clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees,” according to the Board. The centrality of the employees’ workplace communication as a Section 7 right was a key consideration in the Board’s decision. Also considered by the NLRB was the nature and common use of business email in the workplace by employees. “There is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings,” the Board determined, while also acknowledging the importance of email even in a non-work environment. By expanding the number of people employees are able to communicate with and by improving the ability of employees to do their jobs in making these communications, the Board found that email can help keep workers connected to their jobs, even in non-working hours. The Board’s majority recognized that technological advances are constantly changing and accelorating. Admitting that its decision cannot resolve all of the questions that will arise as a result of recognizing the right of employees to utilize employers’ email systems for protected communications on nonworking time, the Board remained unwilling to close its eyes to the importance of the electronic means of communications. Additionally, the Board stressed the importance of the employees’ rights under Section 7 of the Act. Acknowledging its duty to undertake its obligation to accommodate the competing rights of employees and employers by applying and adapting longstanding and flexible Supreme Court precedent, the National Labor Relations Board has opened a gateway of possibilities for related worker-friendly decisions in the future.