NLRB DECISION ALLOWS EMPLOYEES USE OF THEIR EMPLOYER’S EMAIL SYSTEM DURING NONWORKING TIME TO TALK ABOUT THEIR WORKING CONDITIONS

On December 11, 2014 the National Labor Relations Board (NLRB) issued a ruling allowing employees use of their employer’s email system during nonworking time for statutorily protected communications under Section 7 of the National Labor Relations Act (NLRA). As a result, many employees are now eligible to complain about their work conditions to each other via e-mail with legal protection. This matters in non-unionized workplaces, because the NLRA still applies. Even employers with less than fifteen employees should be concerned, because the NLRA applies to many employers with less than fifteen employees.

The employer in this case had an electronic communications policy prohibiting employees’ non-business use of its email system. The NLRB majority stated that there is a presumption that a company rule is invalid if it prohibits union solicitation of employees on company property in nonworking time, unless there is evidence that the rule is necessary in order to maintain production or discipline. Using that presumption, the Board ruled that employees have a right to use company e-mail systems during non-working time to communicate regarding acting in concert to improve working conditions. The holding may result in employers needing to change their policies with regard to the use of work e-mail.