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Barran Liebman LLP
Electronic AlertElectronic Alert, July 9, 2009
Trying To Make Sense of Email Use
Late in 2007 the National Labor Relations Board issued a long awaited opinion on the right of an employer to restrict the non-work use of company email even when employees try to use the systems for union organizing. The issue is too complicated to stop with the NLRB. The decision resulted in immediate petitions to the D.C. Circuit Court of Appeals and is probably on its long path to the U.S. Supreme Court.
The NLRB had said that property ownership rights over “equipment” in the form of email, outweighed an employee’s Section 7 right to communicate with fellow employees regarding union organizing, even though the employees made personal use of the same email system for birth announcements and jokes.
The Board stated as a general principle that an employer may ban personal use of company e-mail as long as it does not discriminate against Section 7 activity, and proceeded with what became an intricate analysis of several instances of discipline under company policies including whether the employees’ activities really violated the policy.
The court’s decision, issued July 7, 2009, found that the discipline of an employee for sending union-related messages was improperly discriminatory because her messages did not squarely fall within the prohibitions of the policy. The policy banned soliciting and since that isn’t what the employee was doing, her discipline under the policy couldn’t stand.
The National Labor Relations Act, which governs employer/employee rights with respect to unions and attempts to organize, provides that “employees shall have the right to self-organization, [and] to form, join, or assist labor organizations….” The NLRA permits employers to bar employees’ non-work related use of its email system provided that the employer does not discriminate against union activity.
What Employers Need to Know
• If you have an e-mail policy, make sure you are clear about what it covers. Any employee reading it should be able to tell whether his/her conduct is, or is not, prohibited.
• If you have an e-mail policy, make sure it is neutral on its face. Acceptable or prohibited use should not be determined by referring to union related conduct.
• If you take disciplinary action under a policy, make sure that the conduct really is prohibited by the policy. If the conduct is protected, and if it is not clearly prohibited by the neutral policy, it is not a big step to concluding that the discipline is discriminatory.
• If you have a neutral policy, you must enforce it in a neutral fashion. That means that employers who permit employee e-mail use for party invitations, school fund raisers, jokes, and all other kinds of personal communication are probably giving up the right to discipline employees for using that same system for unions.
• Avoid taking disciplinary action based on the content of the communication.
• Think about whether to treat e-mail the way you treat telephones. Outright bans really are harder to enforce than policies that regulate time and place and manner.
• But do protect your e-mail systems. You can continue to keep in place those requirements that are intended to keep your e-mail system from freezing or getting overloaded or infected with viruses. Just make sure that all employees who violate those requirements are disciplined.
• Non-solicitation or banning all personal email use is valid if not discriminatorily enforced. Review and update employer property policies, including email use. Although permissible, a complete ban on all non-work related emails is likely impractical due to difficulty in enforcing such a policy, and as noted in Register Guard, personal use of email regularly took place without discipline and provided basis for finding of discrimination.
• Language of the policy is very important. Non-solicitation policy must be carefully tailored so it is broad enough to cover its intended purpose but not be overbroad so as to cover acts that will be overlooked/not be disciplined as this forms the basis of a discrimination claim. If union solicitations are banned, other solicitations, such as charitable or political contributions or requests for sports/concert tickets must receive equal treatment.
• Enforce non-solicitation ban equally to all covered solicitations – do not single out union communications for discipline.
• Any oral and written discipline should be couched in terms of a violation of the policy, and avoid any reference to the nature (union) of the inappropriate communication.
• With respect to employees wearing union insignias or otherwise showing union support, employers should not ban such shows of support unless exceptional circumstances…Seek advice of counsel.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please call Traci Hopfe at 503-276-2115 or email [email protected] Copyright © 2009 by Barran Liebman LLP
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