Can Employees Use Work Email Off Duty?

Can workers use their company’s email system off the clock for non-work purposes? Yes, under certain circumstances according to the NLRB.

The National Labor Relations Board (NLRB) decided that employees are able to use their employers’ email systems to communicate with co-workers about specific types of workplace issues while “off the clock”.

The NLRB decision applies only to employees who have already been granted access to the employer’s email system as part of their normal work duties, and it does not require employers to provide new access to an email system.

The Case for Employee Emails “Off the Clock”

Purple Communications’ employee handbook stated that employees are strictly prohibited from using company email to participate in activities for non-business purposes, and that didn’t sit well with the Communications Workers of America (CWA). The CWA filed an unfair labor practice charge with the NLRB during a union-organizing campaign challenging the policy.

The NLRB ruled in favor of the CWA, saying the employee handbook infringed on the NLRA’s allowance for protected concerted activity by workers.

The rule takes effect in April 2015, but will be applied retroactively. Employers with a policy prohibiting the use of company email system for non-business matters should revise their handbooks to comply with this ruling.

Protected Employee Email Content

The NLRB enforces the National Labor Relations Act (NLRA). Section 7 of the NLRA guarantees employees “…the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Under Section 7, emails between workers communicating self-organization and other workplace and employment conditions are considered protected concerted activity even when employees are “off duty” and using the company email system. (The NLRB recognizes work breaks and meal times as ‘off the clock’ time.)

One exception to the NLRB decision – the “nuclear option” – permits employers to enforce a total ban on all emails during nonworking time to protect its email system from damage or from overloads due to excessive use, whether the communication is related to Section 7 activities or not. Additionally employers can monitor for misuse and negative effects on productivity; however the NLRB decision noted that employees who are off-duty are not expected to be productive during nonworking hours.

The nuclear option presents several risks, including damage to morale and workplace culture, but it also requires strict monitoring and a zero-tolerance implementation so as not to appear to target Section 7 emails.

The NLRB decision comes during a trend toward increased email usage in the workplace across job functions and an increase in the number of remote workers. The Board states that “email’s effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication.”

Protected Concerted Activity

Protected Concerted Activity is defined as “a legal term used in labor policy to define employee protection against employer retaliation. It is a legal principle under the subject of the freedom of association.” For example, when two or more employees talk to their employer about wages, benefits, working conditions or other conditions of their employment they are engaged in protected concerted activity. An individual employee may also engage in protected concerted activity if (s)he is speaking up for a group of employees.

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