Employers must allow off-hour access to email

NEW YORK - Companies can't stop their employees from using work email during nonworking time, according to a ruling from the National Labor Relations Board.

The 3-2 decision, awaited by labor and employment lawyers, reversed a 2007 ruling that permitted employers to restrict email use in employees' off hours under Section 7 of the National Labor Relations Act. That section essentially protects the right of employees to unionize or take collective action.

In an opinion by Chairman Mark Gaston Pearce, joined by members Kent Hirozawa and Nancy Schiffer, the NLRB held Thursday in Washington 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 ruling has limits, the majority held. It didn't require employers to provide access to email; it permitted a "total ban" on email use during nonworking time if there are "special circumstances;" and it didn't address email use by nonemployees.

Jonathan Fritts, a partner at Morgan, Lewis & Bockius, represented the Council on Labor Law Equality in the filing of a brief urging the NLRB to allow the continued restrictions on email use outside of work.

In an interview Thursday, he said that despite the ruling, "general limitations on email use, so long as they are consistently enforced and can demonstrate that they are designed to protect the system from crashing or being exposed to viruses, should be allowed."

Marshall Babson, one of the Democrats appointed to the NLRB by President Ronald Reagan in 1985, predicts that the ruling won't be upheld if it's appealed.

Babson, senior counsel at Seyfarth Shaw, said in an interview, that "the notion that these communications must be made available is contrary to 50 years of board and court law."

Fritts, on the other hand, suggested that the ruling wouldn't bar employers from placing some limitations on email use.

"Content-neutral restrictions should be allowed - an employer has to treat union-related emails the same as those involving charities or even fantasy football," he said.