In a pre-Christmas ruling, the National Labor Relations Board issued an opinion that strengthens the employer’s right to restrict the use of company e-mail for non-work related activities, including union solicitation. It applies to all private employers, regardless of union or nonunion status. According to the New York Times:

The ruling involved The Register-Guard, a newspaper in Eugene, Ore., and e-mail messages sent in 2000 by Susi Prozanski, a newspaper employee who was president of the Newspaper Guild’s unit there. She sent an e-mail message about a union rally and two others urging employees to wear green to show support for the union’s position in contract negotiations.

During the years that this case was pending, many companies were uncertain whether they could bar union-related e-mail. But the labor board’s decision gives companies nationwide the green light to flatly prohibit union-related e-mails as part of an overall non-solicitation policy.

“An employer has a ‘basic property right’ to regulate and restrict employee use of company property,” the board’s majority wrote. “The respondent’s communications system, including its e-mail system, is the respondent’s property.”

Prior to this ruling, conventional wisdom held that e-mail would be treated in much the same manner as other communications under Section 7 of the National Labor Relations Act, which forbids employers to discriminate in terms of union organizing. To avoid discrimination, employers that wanted to maintain nonunion status were strict about disallowing any other types of non-work solicitations and communications in the workplace, encompassing communications from Girl Scout cookies and bowling clubs to Avon.
But while this opinion strengthens employer control over e-mail, it apparently does not hold to the same non-discrimination standards, making allowances for some types personal e-mail messages. This would seem to indicate that employers may want to revise organizational policies to clarify what communications are and aren’t allowed. It also raises the question as to whether this newer standard will apply to other forms of communication as well. This ruling was politically controversial, split between party lines, and some think that the decision may be revisited by a new Board in the next administration.
We are not lawyers, so for a greater understanding of some of the legal nuances in the decision, we turn your attention to the following experts:
Ross Runkel at LawMemo discusses the “two bombs” that the NLRB dropped in its last day in office. Jeffrey M. Hirsch of Workplace Prof Blog and Mitchell H. Rubinstein of Adjunct law Prof Blog both discuss problems with the ruling.
Rod Satterwhite of Suits in the Workplace also offers a history and summary of the decision and this explanation of what the ruling means to employers:

With respect to e-mail policies, employers may now “distinguish between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations to support any group or organization such as unions, political parties or religious groups. Allowing the employer to distinguish between personal and organization interests is extremely important, because the Board had previously held that if an employer allows employees to discuss personal matters, such as athletic scores, news or family affairs, it could not prohibit discussions of union matters.

Equally important, the Board clearly intends this new understanding of discrimination to apply in other contexts, including right of access to employers’ property and internal non-solicitation/no distribution policies, although it excluded situations in which employees had no opportunity for face-to-face communication.

We’ll keep you updated if we see any other good legal guidance on the matter.


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