Last month, the National Labor Relations Board reversed established precedent, concluding that employees must be allowed to use the employer’s email system for protected communications made during non-working hours by employees who have been granted access to the system for work purposes. In a 2008 decision that reflected decades of earlier precedent, the Board concluded that if the employer banned use of its system for all non-work related uses, it did not violate employees’ rights to engage in protected concerted activity.

In Guard Publishing d/b/a Register Guard, a 3-2 majority of the NLRB directly reversed this earlier line of reasoning. The majority justified its reversal by noting the unique nature of email communications. The Board said that email had become so ubiquitous in most businesses, that it has become the predominant means of employee communication. Therefore, employee access is necessary for concerted activity.

The NLRB went on to conclude that employers could only bar employee use of their systems for purposes of concerted activity where special circumstances are required to maintain production and discipline. The Board did not provide examples of such circumstances, and indicated that they would be rare. The decision effectively allows employees to use their employers’ electronic communications systems to organize or otherwise protest terms and conditions of employment.

The decision also touches upon employers’ right to monitor employee use on company email systems. While acknowledging such monitoring rights in concept, the Board stated that employers could not change their monitoring practices in response to employee organizing activity. In other words, if the employer is not actively reading employee emails, it cannot begin to do so once involved in a union campaign.

The dissenting NLRB members questioned the need to disrupt established precedent in this area. They noted that employees have multiple alternatives to their employers’ email systems such as Facebook, in order to discuss work concerns online. They also raised concerns that the Board’s position violates the First Amendment because it compels employers to allow employee speech with which they disagree on their systems.

In actuality, this decision may not affect the majority of employers that already permit employees’ reasonable use of company email systems outside of work. As with many recent NLRB decisions, Guard Publishing is likely to be appealed to federal court. Employers may decide to wait for courts to review this course change before amending their electronic communications policies.