CHA News Article

NLRB Reverses Rules on Employee Use of Email
Decision is significant to health care employers

Today the National Labor Relations Board issued a significant ruling that impacts both unionized and non-unionized employers. In a case with Purple Communications, Inc., the board reversed a 2007 decision and ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The board recognized an employer’s right to limit employee email use in two respects. First, an employer is not required to provide employees access to its email system. The ruling only applies to employees who are provided access in the course of their work. Second, an employer may justify a total ban on non-work use of email, including Section 7 use on non-working time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.

Because a significant portion of the health care workforce is granted access to employer email systems as part of their duties, this ruling has significant implications. It is likely employers will appeal the decision to the federal appellate court. Hospitals should consult with labor counsel on this important issue.