June 2008Newsletter

Employer Control of Email Use: National Labor Relations Board General Counsel Provides Guidance

Employment Law Express

In December 2007, the National Labor Relations Board (“NLRB”) issued a groundbreaking decision in The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (Dec. 16, 2007). In Register Guard, the Board found that an employer did not violate the National Labor Relations Act (“NLRA”) by maintaining a policy prohibiting the use of the employer’s email system for all “non-job-related solicitations,” including Section 7 activity. The Board further held that an employer’s email system is company property and that employees have no statutory right to use it for Section 7 purposes.

Following the issuance of this much awaited decision, the General Counsel of the NLRB instructed all Regional Offices to submit discrimination cases related to Register Guard to the Division of Advice, to ensure a consistent application of that decision. On May 15, 2008, the General Counsel published a memorandum detailing the outcome of several cases which have thus far been submitted pursuant to this instruction.

In Case 1, the Division of Advice determined that an employer’s rule which barred union officials from sending emails to company managers outside of the facility was lawful. The Division of Advice found this rule to be lawful because it concerned how the union was permitted to use the email system and did not otherwise prohibit the union from engaging in protected communications outside the plant or to broad groups of managers.

In Case 2, an investigation revealed that the employer warned and/or disciplined employees engaged in union solicitation activity, but allowed non-union-related solicitations including sales of Avon, Mary Kay Cosmetics, homemade foods and jewelry, and school fund-raising solicitations. The Division of Advice concluded that Register Guard does not present any bar to issuing a complaint alleging that the employer discriminatorily enforced a facially valid no solicitation rule.

In Case 3, an employee sent emails about a union meeting. Before sending the email, the employee asked the IT Director what was considered abuse of the company’s computer system. The IT Director did not mention emails, but did discuss internet abuse. After sending the email, the employee received a written warning for using the email system for solicitation purposes. An investigation revealed that other employees frequently used the system to send non-work related emails while at work, including chain letters, jokes, party invitations, and non-business related solicitations. Evidence demonstrated a discriminatory prohibition of union-related solicitations (the employer allowed all kinds of other email communications before and after the employee’s discipline).

In Case 4, an employer violated the Act when it terminated an employee for inappropriately using the employer’s computers in violation of its policy. The employee in question had sent an email to the Board of Directors questioning the employer’s working conditions. The Division of Advice noted that the email policy allowed for reasonable personal use of the employer’s computer and that the employer permitted employee use of the internet and email systems for personal purposes. Thus, the Division concluded that the employer disparately enforced its email policy.

In summary, while the Register Guard decision does give employers more leeway, it is essential that you continue to enforce facially valid rules in a neutral way, or risk the Board finding that you discriminatorily enforced the rules to prevent Section 7 activity. As the Division of Advice continues to receive more Register Guard cases, and publishes more memoranda, we will keep you apprised of new developments.

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