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Labor
Board Establishes New Rules Regarding Employers’ Abilities
to Restrict Employee Use of E-Mail Systems
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Many employers have policies restricting employees’ use
of company e-mail systems for the purpose of precluding
activities that are contrary to the employer’s
interests, including union organizing efforts or union-related
communications. Unions and employees have challenged
such policies on the grounds that the employer unlawfully
discriminates against union-related messages by permitting
other non-business uses of the e-mail system, or that
company e-mail is simply a convenient way for employees
in different locations to communicate about union matters. The
few Board and court decisions touching on these issues
in the past few years left employers with no clear
guidance on when and how they may lawfully preclude
employees, or outside union organizers, from co-opting
their e-mail systems to advocate for unions.
In the just-released decision of Guard Publishing Co.
d/b/a The Register-Guard, 351 NLRB No. 70 (2007), the
NLRB has attempted to define the circumstances in which
employers may lawfully restrict access to their e-mail
systems. The decision is largely good news for
employers. First, the Board made clear that as
a general rule, employers may lawfully prohibit employees
and outsiders from using company e-mail systems to
conduct union organizing or other activities protected
by the National Labor Relations Act. The Board
suggested, however, that it might be willing to consider
exceptions to this rule in future cases where e-mail
is the only effective form of communication between
employees.
The Board also helped employers when analyzing the
issue of whether an employer’s discriminatory
enforcement of an e-mail policy could require that
the employer make an exception for union-related communications. In
the Register-Guard case itself, the employer’s
policy precluded “non-job-related solicitations.” The
employer had allowed personal messages such as “jokes,
baby announcements, party invitations, and the occasional
offer of sports tickets or request for services such
as dog walking.” However, the employer
had not allowed employees or anyone else to use the
e-mail system to solicit for any outside organization
other than the United Way. Slip op. at 8.
Under these facts, the Board held that the employer
had not discriminated against the union, because while
the employer may have permitted certain personal communications,
it had not allowed other types of non-job-related “solicitation.” (The
sole exception was in connection with a company-sponsored
United Way drive; the Board reaffirmed prior cases
creating a limited exception for such “limited
charitable solicitations.”) The new rule,
as the Board described it, is based on the fact that “discrimination
means the unequal treatment of equals.” Thus, “unlawful
discrimination [against protected activities] consists
of disparate treatment of activities or communications
of a similar character because of their union or other
Section 7-protected status.” Slip op. at
9.
So, the Board further explained, “an employer
clearly would violate the Act if it permitted employees
to use e-mail to solicit for one union but not another,
or if it permitted solicitation by antiunion employees
but not by prounion employees.” Slip op.
at 9. An employer may, however, lawfully “draw
a line between charitable solicitations and noncharitable
solicitations, between solicitations of a personal
nature (e.g., a car for sale) and solicitations for
the commercial sale of a product (e.g., Avon products),
between invitations for an organization and invitations
of a personal nature, between solicitations and mere
talk, and between business-related use and non-business-related
use.” Id.
Although the Board found that the employer in Register-Guard
had not violated the NLRA by disciplining an employee
for a union-related “solicitation,” it
did find a violation based on discipline for an e-mail
which simply provided information about a union rally
without necessarily soliciting support. Because
the employer had in the past permitted employees to
send similar non-work-related e-mails, and the e-mail
usage policy prohibited only non-job-related “solicitations” (as
opposed to non-job-related “communications”),
the employer could not choose to selectively enforce
the policy against e-mails containing mere information. Slip
op. at 10-11.
The Bottom Line for Employers
On the whole, the Register-Guard decision is good news
for employers because it gives them leeway to distinguish
between the types of non-work-related communications
that will be permitted under an e-mail usage policy
and those that will not. In light of Register-Guard,
employers should review their current e-mail usage
policies, and perhaps other communications systems
policies, to determine whether it is advantageous to
be more specific when defining permitted and prohibited
uses of the company’s systems.
However, dangers still lurk. When considering
e-mail or communications policies in the future, employers
should keep in mind the following important points:
1. In rare cases where e-mail is the only
effective way that employees or groups of employees
may communicate with each other, the Board could
find that the employer must provide access to
the e-mail system for union and other protected
activities.
2. Employers must still follow their own policies
regarding which uses of the system are permissible
and which are not. Making exceptions to a policy
will allow the employees or union to argue that the
employer is discriminating against them by failing
to extend the exception to the union-related communications. Thus,
employers should be careful not to draw lines
which are difficult to enforce.
3. An employer’s “motive” in
drafting a purportedly neutral rule is still a consideration
when determining whether the rule discriminates against
protected activity. At least three of the five
Board members would appear willing to infer that an
employer has a discriminatory motive if it does not
have a reasonable interest in creating the neutral
rule at issue. Slip op. at 9 n.17. As
a result, employers must be sure that their
rules have a legitimate and defensible business
purpose.
4. The Register-Guard decision did not explore
in any detail how the Board might interpret employers’ neutral
rules. For example, although the Board said that
employers could lawfully distinguish between “solicitations” (prohibited)
and “mere talk” (permitted), slip op. at
9, it may not be clear whether a carefully drafted
e-mail about a particular union activity constitutes
a “solicitation” or is simply “talk,” or
whether a casual reference to a charitable organization
is a “solicitation” or “talk.” The
issue could be even more complicated depending on the
types of “talk” the employer has already
permitted under the policy. Therefore,
employers and their counsel should carefully
consider issues of interpretation when drafting
policies to account for Register-Guard.
The parties in this case could appeal to the federal
courts. But unless and until the case is
reversed or modified, it is good law.
* Muskat, Martinez & Mahony, LLP represents
employers in labor and employment lawmatters. For
more information, visit our website at www.m3law.com,
or contact any of our lawyers:
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com
Stephanie Schmutz Parente, (713) 987-7853, sparente@m3law.com
Amy Ferber, (713) 987-7850, aferber@m3law.com
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