In December, the National Labor Relations Board (“Board”) overturned a 2007 decision and held that employee use of company email for union and other protected communications on non-working time must be permitted by employers who give employees access to company email. The Board’s key argument is that in today’s industrial world, email has become a key communication tool in the workplace. Unlike the 2007 decision which stated that email is the property of the employer just like equipment, bulletin boards, and phone systems, the Board’s recent decision described email as an electronic space for employees to communicate and one that will not be burdened if employees choose to use it for protected activity.
The decision is fairly straightforward, although the Board offers several disingenuous “limitations” to the decision which will affect few employers. The “limitations” include 1) the right to communicate applies only to employees who have access to the company email system, 2) an employer can have a total or partial ban on non-work use of email if the employer can demonstrate special circumstances that make the ban necessary to maintain production or discipline, and 3) the decision does not include nonemployees or other electronic communication mechanisms.
Unfortunately, this decision is very clear: On non-working time, employees may use company email to discuss union organizing. Employees can even use company email if they are just complaining about such issues as wages, scheduling, hours of operation, supervision, etc. Based on this, employers should keep several issues in mind.
First, the same prohibitions against spying or giving the impression of spying still apply. Therefore, employers should not change their normal practices with regard to scanning employee email in an effort to check on employees and determine union sentiments. If an employer has regular systems in place to scan emails for appropriate use and content, it is fine to continue those non-discriminatory practices. Second, employers should review employee handbooks and policies to ensure that policies involving company email use are not overbroad. For example, a rule such as “Use of company email is limited to business only” is likely overbroad. Third, employers should take note that the Board may tackle other forms of company communications next such as social media. If you have any other forms of company electronic communications, you may be required to allow employees to use them for protected activity. Fourth, union organizers are now aware of this rule and will likely start harassing employees and persuading them to send out union propaganda through the company email system. The key to ensuring your employees will withstand this pressure and say “no” when union organizers approach them to send out emails is practicing positive employee relations on a daily basis. If this isn’t your current practice, now is a good time to start.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
