Employers who monitor workers’ electronic communications cannot discipline workers for using company email off hours for non-business-related purposes, according to a ruling issued last December by the National Labor Relations Board. The new ruling (361 NLRB No. 126) states that employees with access to employer email systems “in the course of their work” must, in most cases, be allowed to use that email system to communicate with other employees during non-working time about any and all workplace issues. “This is a significant development because the new decision squarely reverses the NLRB’s own prior ruling on the issue,” says John Balitis, director of Labor and Employment at the Phoenix office of law firm Fennemore Craig.
The NLRB had ruled in 2007 that employers had the right to restrict employee use of employer-provided email systems to business-related communications only. In making the new decision, the NLRB notes that email platforms have evolved into the electronic equivalent of “natural gathering places” and employees have the right to use the systems for their own purposes, provided there are “special circumstances” to which they can be held accountable. “The decision gives employees a new tool to use in communicating with one another and in pursuing union organizing efforts. As a result, employers may see an increase in these activities,” Balitis says. Employees and unions now have grounds to file unfair labor practice charges challenging employers’ existing email policies that contain a business-use-only restriction. “The decision also may place employers at risk for litigation over what ‘special circumstances’ may justify partial or complete restrictions on employee use of company email systems.”