In a dramatic reversal, the National Labor Relations Board (the "Board") today ruled that employers may not restrict employees from using the employer's email to communicate with fellow employees about union matters, or other matters protected by Section 7 of the National Labor Relations Act (the "Act"). In doing so, the Board ruled that a 2007 decision that allowed such a restriction was "clearly incorrect."

Section 7 of the Act permits employees to engage in concerted activities regarding the terms and conditions of employment. In general, employers must protect and accommodate those rights, though the United States Supreme Court has recognized that an employer's property rights must also be recognized and that the proper balance will result in "as little destruction of one as is consistent with the maintenance of the other." Hudgens v. NLRB, 424 U.S. 507, 521 (1976). In accordance with this principle, employers can restrict the use of break rooms, bulletin boards, and other work areas so long as the restriction is consistent and necessary to maintain production and discipline. In its 2007 decision in Register Guard, 352 NLRB 1110 (2007), the Board applied this doctrine to permit an email policy that prohibits the use of the employer's email system for non-work matters, such as union activities.

However, with this new ruling, the Board has taken a dramatic turn. Click here for the details.