A recent decision by the National Labor Relations Board, drastically changes the rights of employees using company email and requires players to review and revise electronic communications policies.
In Purple Communications, the NLRB voted 3-2 (along party lines) that if employees were given access to company email they had the right to use it for nonwork-related reasons unless the employer in "special circumstances" could show barring such use was "necessary" to maintain production or discipline.
Bottom line is that employers can no longer have a policy or rely upon a right to prevent personal use of email.
To be clear this ruling does not prohibit employers from maintaining rules as to how email can be used (i.e., no offensive messages) but those rules will essentially have to be no more restrictive than any other rules on speech in the workplace.
Hence, just as an employer could not prohibit employees from talking to their spouse on breaks, they cannot prohibit them from doing so via email, even though the email system is paid for and maintained by the company for work purposes.
This latest decision continues a trend of groundbreaking decisions extending the NLRB's impact far beyond unionized employees.
While this decision will likely be appealed and will have a difficult time withstanding the scrutiny of federal appeals courts, in the meantime employers must know they can no longer simply rely upon a no email rule and need to create a policy addressing the specific do's and don'ts regarding email use by their employees.
Ari Karen is an attorney at Offit Kurman.
