Under current law established in 2007, an employer can restrict the use of email and company computer systems so long as the employer does not improperly draw distinctions between employees’ personal activities and their NLRA-sanctioned activities because of their protected nature. But as we know, the membership of the Board is different now and this is one of a slew of laws it wants to overturn.
Last week was the deadline to file amicus briefs (and more than a dozen were filed) for the National Labor Relations Board to review when considering whether employees have a right to use employer email and communications systems for union organizing. In the recent past, whenever the Board solicits amicus briefs, it is immediately prior to the Board overruling an important employer-friendly law.
The Board argues that employees who use a company email system for work purposes have a statutory right to use the system for union or protected concerted activity during their non-work time, unless “special circumstances” exist. Business groups and employers argue that the use of email is more like distribution of literature on a company’s premises. Even if a worker prepares and sends an email on the employee’s non-working time, the message may be received – or opened and read – by the recipient when he or she is supposed to be working. In this way, email is like literature that clutters a work area and therefore may be prohibited at all times.
If the past is a good predictor of the future, I believe the Board’s request for amicus briefs was just a formality. I fully expect it to overturn the current law and allow employees to thoroughly use company-provided computers, smartphones, Internet, and email systems to assist in union organizing on company property and during working time.