NLRB Says Employees Have the Right to Use Work Email for Union Organizing and Other Protected Activities

Earlier this month, the National Labor Relations Board (NLRB) ruled that employees must be allowed to use their work emails for union organizing efforts and other protected activities under federal labor laws. In doing so, the NLRB reversed one of its previous decisions from 2007, which allowed employers to limit the use of work email to “business use” only. As of December 11, 2014, this is no longer the case.

As with many other NLRB decisions (including those on employees’ use of social media), the ruling will affect union and non-union employees alike. The NLRB has long held that the National Labor Relations Act (NLRA) protects not only employees who are in unions or actively organizing unions, but also non-union employees who get together to discuss the terms and conditions of their employment. For example, non-union employees have the right to talk about their dissatisfaction with their pay, or their concerns about workplace safety, without fear of being fired or disciplined by their employers.

While employees already  have the right to have these discussions through other means (such as in person or through personal emails), the NLRB’s new ruling extends that right to company email. Employees may now use work emails to have these discussions, as long as they happen during “non-working time,” such as rest breaks, meal periods, and the time before and after established work hours.

The NLRB set some limitations on its ruling.  First, the new rule applies only to employees who are given access to work email by their employers. It does not require employers to give work emails to employees who don’t already have them. Second, employers can continue to monitor email communications for legitimate business reasons, provided they tell employees that their emails will not be private. However, employers cannot change their monitoring practices to detect protected activities or discipline employees for engaging in protected activities.

The NLRB also created a limited exception to its rule in special circumstances. Employers may limit the use of work email to business use only where such a rule is necessary to maintain productivity or discipline. However, the NLRB was quick to point out that this exception would be the “rare case.”

Following the NLRB’s decision, employers will need to revise their Employee Handbook policies to remove any requirement that work email be used for business use only. Instead, employer policies should state that employees are permitted to use work emails to communicate with each other about union activities or the terms and conditions of their employment, but only on non-working time.