Why your email policy probably isn’t legal?

December 16, 2014 at 9:07 am Leave a comment

Your email policy probably isn’t legal; It may have been perfectly appropriate last week but there is a good chance it is a hopelessly outdated relic of labor law today.

Is this just a pathetic attempt to get your attention as my blog competes with your overloaded Inbox? Kind of but it also reflects the fact that late last week the NLRB fundamentally changed the legal rights of employees to use email on company time, At the very least you should grab your email\electronic communications policy and see if a call to your HR attorney may be in order. If you don’t have a policy then get to work creating one.

Our story begins with a company in California that provides interpreting services for the hard of hearing, The employees spend most of the day at their desks and are given a company email account. The employees decided to unionize but argued that their right to vote for representation was illegally inhibited by a company email policy that I bet reads a lot like yours it explained that:

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:


  1. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.

. . . .

  1. Sending uninvited email of a personal nature.

As recently as 2007 the NLRB and a federal court in the District of Columbia reviewed a similar policy and upheld a straightforward rule: Employers can limit the use of employer owned equipment to work related activities. Email service is an investment in company property and as such is subject to a company’s rules prohibiting its use for non-work related activities,( In Re the Guard Publ’g Co., 351 NLRB 1110 (2007))

In last week’s  decision the NLRB overturned this earlier ruling and created a new legal framework for analyzing what  limits can be placed on the use of company email by employees. Now there is “a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.”Purple Commc’ns, Inc. & Commc’ns Workers of Am., Afl-Cio, 361 NLRB No. 126 (Dec. 11, 2014)

What does this mean?

First, as I have explained in previous blogs an employee has a right to engage in concerted activity to discuss workplace conditions with their fellow employees irrespective of whether or not they belong to a union. This ruling could impact your credit union.  For instance employees exchanging emails critical of a new marketing initiative that they think is bad for the credit union might be legally protected.

Second the fact that you might allow your employees to bring their tablets and iPhones to work doesn’t alter your obligation to allow the use of email. A dissenting opinion to the Board’s decision argued that employees have more than enough ways of communicating with work- mates irrespective of their access to a company’s email system. To the NLRB majority this doesn’t matter.

Third, the decision doesn’t mean you can’t regulate email use. It just applies to email use during non- work time such as a lunch hour. The majority made clear that you can still monitor email. And remember most communication is not concerted activity. For example, employees still don’t have the right to sexually harass each other over the internet Furthermore companies that can prove that their workplace has unique attributes that require it to adopt more restrictive email policies will be allowed to impose restrictions. But this is going to be an extremely difficult argument to make.

Fourth, this is not the last word on this case. The NLRB’s In Re the Guard Publ’g Co decision on this issue ended up in court and I would bet you that this decision ends up before the courts in the not so distant future.

Now for a personal observation: The NLRB is pushing for employee email protections precisely when we have a real life example of just how detrimental email can be to a company’s reputation  courtesy of hackers who have published embarrassing emails from executives at Sony. For example one Email from an executive had the audacity to question the talent of Angelina Jolie! Now in “LA LA land this is big news since  you don’t want stars to pass on making your studio’s next movie.  The point is there are some conversations businesses should be allowed to keep in-house or comments that simply shouldn’t be made by an employee in the first place. Now some of those comments might be legally protected.

Here is a link to the decision and an earlier blog I did on this case.




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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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