Recently the NLRB issued its decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), holding that an employer’s email system must be made available to its employees for the purpose of engaging in union activity and other protected activity under Section 7 of the National Labor Relations Act, so long as such use occurs during non-working time. The decision, rendered by the three Democrat Members, was sharply criticized by the two dissenting Republican Members on the Board. The decision in this case also overruled the Register Guard case issued in 2007, which had held such use of an employer’s email system not protected where the employer’s email policy prohibited such use.

An employer can avoid this new rule “by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”

Many employers have in their employee handbooks or policies provisions which restrict the use of the employer’s email system to strictly business use. Those policies now run likely afoul of the NLRB’s new rule.

Therefore, to be safe, employers should review their email policies carefully to determine whether changes should be made to them.