Today, the National Labor Relations Board reversed its 2007 decision in Register-Guard [pdf] and held in Purple Communications, Inc. [pdf] that employers that provide employees with access to employer email systems for business-related purposes must permit employees to also use those email systems for non-business related communications, such as union organizing and other communications protected under the National Labor Relations Act, as long as it occurs during non-working time. Although the decision does not require that employers provide employees with access to email if they presently do not have such access, and allows employers to impose a total or partial ban on non-work related emails if special circumstances exist making such a ban necessary for discipline or production reasons, the decision provides a broad right to employees to use employer property – its computers and email servers – for non-work related purposes, including purposes that may be directly against the employer’s interests.
The NLRB’s decision here likely is a harbinger of things to come over the next week, as the term of one of the current Board members, Nancy Schiffer, will expire on December 16. It is anticipated that prior to the end of her term, the Democrat-majority Board will issue a number of other decisions involving controversial topics, including the pending Browning-Ferris Industries case involving the joint employer standard under the Act and the Northwestern University football player case, which involves the issue of whether scholarship athletes are employees under the National Labor Relations Act and therefore have the right to unionize.
