In keeping with its clear pro-union agenda, late last year, the NLRB overruled its past precedent and held that employers who grant employees access to their email systems must now allow them to use the email system for Section 7 activity during nonworking time. Under the NLRA, Section 7-protected activity could include such things as emails between employees soliciting support for the union or some other concerted activity for the employees' mutual aid or protection.
The NLRB will now presume that employees who have been given access to the employer's email systems in the course of their work have the right to use the email systems to engage in Section 7-protected communications on nonworking time. But an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees' usage.
This rule applies to most businesses, whether unionized or not. Employers that did not give employees access to their email systems before do not need to do so now. However, employers that presently restrict access for business purposes only must now give employees access to engage in Section 7 communications during nonworking time, unless they can justify a complete or partial restriction on employee use.
The decision leaves many questions unanswered. For example, what special circumstances are necessary to justify a total ban or partial restriction on email usage? Also, how can an employer lawfully ensure that its employees are working during working time without conducting unlawful surveillance on the employees—another unfair labor practice under the NLRA?
While waiting for answers to these questions, we will keep you posted of any developments.
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