Steven Swirsky Quoted in "Lawyers Weigh In on NLRB Employer Email Ruling"

“It is a major game changer. Although the majority writes that employers ‘may justify a total ban on the use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline,’ and that ‘uniform and consistently enforced controls’ may be imposed for such purposes, a great deal of litigation is likely and given the board’s endorsement of email as the most fundamental form of communication among employees, it is likely that employers that seek to adopt and enforce such restrictions will have to meet a very steep burden to prove the existence of such ‘special circumstances.’ Add to this the board’s acknowledgement that ‘employers who chose to impose a working-time limitation will have concerns about the extent to which they may monitor employees’ email use to enforce that limitation,’ and you can quickly see the types of unfair labor practice charges and litigation that employers will be faced with as they struggle to enforce policies against disclosure of confidential information and inappropriate content.”