Our colleages have analyzed a significant NLRB decision in Purple Communications Inc. that, in most circumstances, employees have a right to use employer email systems for non-business purposes during non-working time. This decision reversed the NLRB’s 2007 decision in Register Guard, in which it found that employers could limit employee use of email systems to “business purposes only” and that employers could “specifically prohibit” certain email system uses by employees:

• In reaching this conclusion, the Board adopted a presumption that employees who have been given access to an employer’s email system are entitled to use that system to engage in discussions about their terms and conditions of employment while on non-working time.
• In adopting this presumption, the Board addressed two issues: (1) can an employer maintain a total ban on non-work email use by employees, and (2) can an employer apply uniform and consistently enforced controls on their email systems? In both cases, the Board concluded that an employer would have to demonstrate “special circumstances” to justify a ban. The Board noted that such “special circumstances” would be rare and might include a ban on non-work email that was necessary to protect an email system from damage or overloads due to excessive use. Likewise, the Board stated that an employer may be able to maintain a uniformly enforced policy banning large attachments and video/audio segments if an employer could show that such files interfered with the email system’s proper functioning.

The minority opinion noted the potential for trouble from this decision:

• Third, the majority’s new statutory right adversely affects a significant number of other legal requirements, including many imposed by the Act. These problems include difficult questions regarding  … the ever-increasing need for employers to carefully monitor email systems for unauthorized usage and security intrusions….