The NLRB often flip-flops on whether employers can limit the use of company email for only Company purposes, only.
Boards serving under Republican Presidents of the United States give employers more leeway in implementing workplace policies that restrict certain types of communication via work email. Boards under Democrat Presidents do the opposite.
The NLRB Division of Advice – a part of the NLRB that does not typically change when the political party of the President changes, recently ruled that a Seattle hospital lawfully disciplined a worker for emailing coworkers a letter that contained apocalyptic prophecies, Bible verses, and a warning about a “’Mark of the Beast’ Covid-19 vaccine” that would doom a recipient’s soul.
This letter was not related to the workplace. It was purely personal. Personal emails with no real connection to the workplace are not generally protected by the National Labor Relations Act.
There may be some other protections for this email outside of the NLRA that permits this type of email, i.e. Title VII of Civil Rights Act (i.e., could stifling this letter or disciplining the employee who sent it be considered religious discrimination).
For now, under the NLRA, because a corporate email system is the employer’s property, an employer may ban all non-business email communications, including communications protected by Section 7 unless email is the only reasonable means for employees to communicate with each other. See, Caesars Entertainment.
This law will probably change within the next two years while the Democrats hold a majority of the seats on the NLRB. I expect the Board to return to the holding in Purple Communications which said that workplace rules prohibiting employee email use for union activity were presumptively invalid under Section 7 of the NLRA.
Because Section 7 applies to all employers, not just unionized ones, these laws affect almost every U.S. employer that provides a corporate email system.
Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.
Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.
Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.
You can reach Matt via email at Matt@MattAustinLaborLaw.com.