NLRB Rules That Employers Must Allow use of Email Systems for Union Organizing

On December 11, 2014, the National Labor Relations Board ruled that an employer violated the National Labor Relations Act by prohibiting the use of its email system for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or “sending uninvited email of a personal nature.” The board ruled that these restrictions interfered with employees’ rights under Section 7 of the NLRA to engage in concerted activities for the purpose of collective bargaining. The board reasoned that email has become an important “gathering place” for workers and that it should not be treated like other office equipment such as bulletin boards, copy machines, and telephones which employers own and can control, but should instead be subject to the same rules as face-to-face communications in the workplace.

This new board ruling reverses a 2007 ruling in which the board held that email systems should be treated like other office equipment and adopts the standard set forth in Republic Aviation, a 1945 U.S. Supreme Court case dealing with restrictions on face-to-face workplace solicitation. Under that standard, employees who have been given access to an employer’s email system are permitted to use that system for union organizing during non-working hours unless the employer can demonstrate “special circumstances” that would justify a ban on non-work-related use of the e-mail system. The board did not define or provide any examples of such “special circumstances’ but it did make it clear that this would be a very high threshold to meet. The board also stated that employers could impose restrictions upon the use of their email systems such as prohibiting large attachments or audio/video attachments.

In the future, this decision by the board may be subject to review by the federal courts and may be reversed or modified. However, for now it is the policy of the board to prohibit email use policies that interfere with employees’ use of email systems for union organizing purposes. In light of this policy, you should review your email use policy and decide if any modifications are necessary. When reviewing your policy, keep in mind that the board expressly approved in its decision a restriction on personal use of email during “working time” – i.e. when the employee is on the clock. The board also stated that employers are still permitted to monitor email traffic for legitimate business reasons, but must be careful not to violate the NLRA prohibition on “surveillance” of union activities.

For more information about this ruling or any other labor and employment issues, please contact Glenn Israel at 207 228-7291, gisrael@bernsteinshur.com.