How NLRB Rules on Employment Policies Restricting Use of Company Email Could Affect New Jersey Workers

Late last year, the National Labor Relations Board (NLRB) issued an important ruling regarding restrictions on the use of company email accounts by employees for non-work purposes. This ruling reverses a 2014 NLRB decision, which held that employment policies restricting the use of company email for union organizing purposes presumptively violate the National Labor Relations Act (NLRA). It largely reinstates another NLRB ruling, this one from 2007, which allowed a ban on company email use. While the 2019 decision is a setback for employees’ workplace rights, it is not a complete return to the situation in 2007. The NLRB left some exceptions that would allow use of company email for union organizing purposes when employees have no other “reasonable means…to communicate with one another.” If you have questions concerning use of company email, contact a New Jersey employment attorney to learn more about how federal law may affect you.

The NLRA protects workers’ labor organizing rights and regulates the relationship between labor unions and employers. Section 7 of the statute, codified at 29 U.S.C. § 157, states that employees have the right to organize, to form or join labor unions, to engage in other “concerted activities” related to organizing, and to refrain from any of those activities. Section 8(a), found at 29 U.S.C. § 158(a), prohibits employers from interfering with those rights, restraining employees’ ability to exercise their rights, or discriminating against an employee for engaging in protected activities.

The 2007 NLRB decision held that “employees have no statutory right to use [an employer’s] e-mail system for Section 7 purposes.” The employer maintained a policy that “prohibit[ed] the use of e-mail for all ‘non-job-related solicitations.’” The Board held that employers’ property rights in their email systems allowed them to restrict non-work-related uses, including activities otherwise protected by the NLRA.

The Board largely overruled this decision in 2014, when it found that the earlier ruling “focus[ed] too much on employers’ property rights” instead of “the importance of email as a means of workplace communication.” Rules barring the use of company email for § 7 activities outside of work hours, the Board held, “must presumptively be permitted by employers” who allow employees to use their computer systems.

The complaint that led to the 2019 NLRB decision alleged that the employer interfered with employees’ protected activities, in violation of § 8(a)(1) of the NLRA. The policy at issue barred the use of the employer’s “computer resources” to “send chain letters or other forms of non-business information.” The ALJ ruled that this violated the NLRA, citing the 2014 decision.

In reversing the 2014 decision, the NLRB cited a Supreme Court decision that held that it must find “accommodation” between “organization rights” and “property rights.” NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956). Numerous NLRB decisions have held that the NLRA limits employers’ rights to control their physical premises, which allows for “oral solicitation” and “distribution of literature.” The Board stated that precedent also holds that employers can still “control the use of [their] equipment,” which the decision took to include email systems.

Since email and other digital technologies are far more common in the 21st century, and “distribution of literature” is far less common, the NLRB allowed an exception for situations where company email is “the only reasonable means” of communication between employees. It specifically avoided “defin[ing] the scope of this exception,” preferring to “leave it to be fleshed out on a case-by-case basis.”

The Resnick Law Group’s employment lawyers can help you with your civil rights claims or other dispute with an employer in New Jersey or New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation.

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