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This article was originally published by the Wisconsin Chapter of the Associated Builders and Contractors in its September 2006 Merit Shop Talk newsletter.

NLRB's Rules on E-Mail Policies:  A Work in Progress

By Jim Pease

The National Labor Relations Board claims the authority to regulate employer policies regarding the use of e-mails to the extent those policies might restrict or interfere with the rights of employees to engage in protected concerted activity.  However, the NLRB has not yet decided precisely what standard will be applied in determining whether an employer’s attempt to regulate that activity is unlawful.

Organizing a union and talking about matters of mutual interests of employees affecting or relating to their terms and conditions of employment, including the employees’ working environment, with fellow employees or union representatives is protected activity.  In fact, there doesn’t have to be a union involved.  Simply communicating with other employees regarding employment related matters of mutual concern is generally enough to result in the activity being considered protected. Therefore, e-mails between employees or between an employee and a union representative are protected.  However, that doesn’t end the analysis of the issue.

Even if activity is protected, employers may, under certain circumstances, regulate that activity when that regulation is necessary to protect the employer’s legitimate business interest.  In this context, avoiding unionization is not considered a legitimate business interest.  Therefore, the employer regulation must be justified by legitimate business interests unrelated to a union.

Generally, employees don’t have a right to use company property for their personal benefit.  That suggests that it would be permissible for employers to have a general policy against personal use of its e-mail system.

The problem is that some employees use e-mails to communicate with other employees.  In effect, e-mail has, at least to some extent, replaced the telephone and face-to-face conversations between employees as the means by which employees communicate with each other during their work day.  That could lead to the conclusion that an employer can’t restrict protected communications at times or in circumstances when it couldn’t prohibit face-to-face conversations between employees.  In other words, under this analysis, it would be unlawful for an employer to adopt a blanket rule against personal use of e-mails, just as it is unlawful for employers to prohibit personal conversations on protected matters during breaks, lunch period and other times when employees are not expected to be working.

Unfortunately, as of the writing of this article, the NLRB hasn’t decided whether to judge employer regulations by the standards that generally apply to personal use of the employer’s property or that apply to face-to-face employee communications.  However, there are some things that are quite clear.

An employer may not have a discriminatory, or discriminatorily motivated, rule, i.e., a rule that discriminates based on whether the activity is union-related or otherwise involves protected activity.  If a type of activity is permitted when it doesn’t relate to protected activity, it may not be prohibited if it relates to protected activity.  For example, if an employer permits some personal e-mails unrelated to protected activity, it would be unlawful for employers to prohibit e-mails that relate to protected activity.

It does appear that an employer may have a policy that prohibits sending or reading all personal e-mails, without regard to content, at times when the employee is actually supposed to be working as long as that policy is not discriminatorily motivated and it is consistently, effectively and nondiscriminatorily enforced.   However, it is unclear whether an employer can apply that prohibition to all times, i.e., prohibit personal e-mails at any time.

Whatever e-mail policy an employer has, it is very important that it not be discriminatory and it must be consistently and effectively enforced.  For those employers who want to push their luck by prohibiting all personal use of their e-mail systems, they should keep a close watch on the news media for an NLRB decision on whether such a rule is lawful.

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This page is intended to provide general information about various legal issues and developments.  It is not intended to be a complete list of all recent legal developments.  This page does not constitute legal advice and should not be relied upon in dealing with specific factual or legal matters.