Can Workers Send Personal Email at Work?

Many employers claim their workplace cultures help employees achieve a work/life balance, but what happens when the edges between work and personal life blur? Should workers have unrestricted access to their personal email, social media, and phone calls that aren’t work-related using company computers and phones?

The General Counsel for the National Labor Relations Board (NLRB) argued that a company’s prohibition of personal communication (email and phone calls) on business computers and phone lines was in violation of Section 8(a)(1) of the National Relations Act (NLRA), which protects workers’ rights to protected concerted activity. Counsel argued that employees should be allowed to communicate freely within their workplace about employment conditions, and that company-owned equipment and systems were readily accessible avenues for employee protected concerted activity.

An NLRB Administrative Law Judge dismissed a claim that employers should be prohibited from restricting their employees’ usage of company-owned equipment and systems to send personal communications.

The company in question, Purple Communications, had developed language in their employee handbook prohibiting personal use of company-supplied computers, internet, voicemail, email, and cell phones.

All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only…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:

  • Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company.
  • Sending uninvited email of a personal nature.

The Employer is authorized to punish an employee’s violation of this policy with discipline up to and including termination.

Overly Broad Policies Are No-Go’s for the NLRB

In the same decision, the NLRB ruled the employer’s rule prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” violates Section 8(a)(1) of the Act because it sets forth an overly broad restriction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity.

Care to Share with the NLRB?

The NLRB is looking for feedback about whether employers should allow communications considered protected concerted activity and protected under the NLRA. Specifically, they want answers to the following:

  1. Should the Board reconsider its conclusion that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?

  5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The NLRB is accepting briefs of 25 pages or less through June 16, 2014 and responsive briefs until June 30, 2014, either of which can be submitted electronically.

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