In a reversal of prior precedent, the National Labor Relations Board (NLRB) late last week concluded that most employees may use their company’s email system for activities related to Section 7 of the National Labor Relations Act; i.e., collective bargaining activities. The NLRB claimed that its decision is “carefully limited,” holding that a company’s email system can be used for collective bargaining activities:

1. If the employees who wish to use the employer’s email system have already been granted access to the system in the course of their work. In other words, employers are not required to provide access by this ruling.
2. If the employer cannot demonstrate “special circumstances” necessary to maintain production or discipline requiring a total ban on nonwork use of email.
3. That said, the NLRB decision also notes that an employer may “apply uniform and consistently enforced controls” on the use of email, but only the extent such controls are necessary to maintain production and discipline.
4. Importantly, the decision did not address email access by nonemployees or any other type of electronic communications systems.

While the NLRB did not define what “special circumstances” will suffice for a total ban or controls on use of email for Section 7 activities, it did explicitly note that the right of use does not turn on the unavailability of traditional face-to-face discussion or the availability of alternative communication options–Facebook, Twitter, blogging and the like.  Similarly, the Board stated that the “mere assertion of an interest that could theoretically support a restriction will not suffice”. Instead, any particular restriction must demonstrate the connection between the interest it asserts and the restriction. On the other hand, the NLRB noted that an employer could prohibit large attachments and/or audio/visual files if those attachments or files interfere with the efficient operation of the email system.

What does all of this mean? First and foremost, an appeal is almost certainly likely, so stay tuned. However, in the meantime, the email issue will continue to be litigated before the Board. For now, total, blanket bans on the use of email for nonwork activities, like the one considered in the NLRB’s decision, are now illegal. Moreover, now is probably a good time for employers to review all of their electronic communications policies to ensure compliance with the law, including this new decision–or at least to understand their risk!