New Pitfalls in a Digital Age - Electronic Usage Policies

Many employers provide their employees with access to the Internet and a company supported e-mail address. Along with the greater use of e-mail and computers, however, has come an increase in the number of ways by which employees may communicate with one another. In order to maintain control over the electronic medium, to temper expectations of privacy, and to make clear that harassing or offensive usage is prohibited, many employers enact electronic usage, or e-mail usage, policies. But such policies often limit the ability to communicate in some way. The question then arises – can overly restrictive electronic usage policies violate the NLRA?

This question was recently answered by the NLRB in The Guard Publishing Co., d/b/a Register Guard, 351 N.L.R.B. No. 70, 2007 WL 4540458, *2 (Dec. 16, 2007). The policy at issue in that case prohibited employees from using the company’s e-mail system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” Nevertheless, the employer was aware that employees were using company e-mail for personal matters, such as making baby announcements, offering dog walking services or selling tickets to sporting events. There was no indication that the employer allowed employees to use the email system for outside organizations, except for the United Way, which the employer supported through a charitable campaign. The NLRB ultimately ruled that the employees did not have a statutory right to use the employer’s e-mail system for Section 7 purposes.

It is important to remember that the NLRA also prohibits discrimination and retaliation. Consequently, an electronic usage policy cannot be discriminatorily applied. As a result, employers must use care to draft electronic usage policies that prohibit use designed to further not only union activities, but all activities of a similar nature. Specifically, employers would be wise to distinguish between use for charitable and noncharitable functions, as well as for personal and commercial functions. Making clear distinctions will be important, as vague prohibitions will open the door to discrimination claims under Sections 8(a)(1) and 8(a)(3) of the NLRA.

Under Register Guard, electronic usage policies can be as restrictive as employers see fit, but they must be applied nondiscriminatorily. While the Board’s ruling in Register Guard is the order of the day, it is widely viewed as subject to attack by the Obama administration. Until it becomes clear that the Register Guard ruling will survive future scrutiny, employers would be wise to structure electronic use policies to treat unions similarly to a broad spectrum of potentially comparable entities.