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Can Employers Prohibit Employees From Using Email For Personal Matters?

The answer may shock you.

For many years, employers have maintained policies that prohibit employees from using the employer's email system for anything other than for business purposes.  Sometimes such policies have been problematic because it is very difficult to completely prohibit employees from using email communications for matters of a personal nature.  However, with the proper safeguards and diligence in monitoring email usage, as well as enforcement of such a policy, employers have been permitted to prohibit personal use of email systems.  Many employers, however, have opted for a less stringent standard and simply regulated the use of email for personal matters during working time.  Employers also have often regulated use of email that may violate some other policy such as a harassment policy.

In 2007, the National Labor Relations Board issued a decision known as the Registered Guard case in which the Board authorized employers to maintain policies prohibiting employees from using the employer's email system for personal matters.  The Registered Guard decision made perfect sense in that it recognized the employer's property rights in the email system.  In other words, since the employer owns the email system, it is permitted to regulate use of the email system so long as the employer's regulation is not applied discriminatorily.

Unfortunately for employers, in a recent issued case known as Purple Communications,  the Board has overruled the Registered Guard decision to require employers who have given employees access to their email systems to allow those employees to utilize the email system during non-working time.  In short, the Purple Communications case stands for the principle that if an employer grants access to an email system, the employer must also permit employees to use that email system for non-work related matters.  The rationale for the Board's decision is that under Section 7 of the National Labor Relations Act, employees have the right to effectively communicate with one another at work regarding self-organization, as well as other terms and conditions of employment.  The Board found that these employee rights outweigh the rights of employers to prohibit personal use of the email system.

The Board essentially found that there is a presumption that employees who have rightful access to the employer's email system have a right to use the email system to engage in protected communications on non-working time.  Although an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting employees' rights, little guidance was provided on what those "special circumstances" might be.

In fact, the Board acknowledged that it will be a rare case where special circumstances justify a total ban on non-work email use by employees.  The Board tried to soften the blow of its decision by claiming that the decision is somewhat limited.  The Board noted that it is limited because it only addresses email systems and not other electronic communication systems, that it does not require employers to grant access to email if employees do not already have access, that it does not grant any right to non-employees to access the employer's email system, and that employers may still establish uniform and consistent restrictions such as prohibiting large attachments or audio/video segments under limited circumstances.

So What Does This Mean for Employers?
Employers will be required to revisit their electronic communications policies to revise the policies consistent with the Purple Communications decision.  This will essentially require employers to remove prohibitions on the personal use of the email system and to regulate only the use of email during working time.  An employer's failure to revise its email policy to comply with the Act may result in a finding that the policy is illegal and can result in liability.