Toc Spring 2009 - Table of Contents
| Publication year | 2009 |
5 Shidler J. L. Com. and
Tech. 15 1 You Can Send This But Not That
Creating and Enforcing Employer Email Policies Under Section 7 and 8 of The
National Labor Relations Act After Register Guard
Shidler Journal of Law, Commerce and Technology Volume 5, Issue 4 Spring 2009
You Can Send This But Not That: Creating and Enforcing Employer Email Policies Under Section 7 and 8 of The National Labor Relations Act After Register Guard
Nicole Lindquist(fn1)
Nicole Lindquist
Abstract
The National Labor Relations Board's decision in Register Guard Company (Register Guard ) set new precedent regarding employee rights to use employer email systems to discuss protected activities under Section 7 of the National Labor Relations Act. The decision established two new rules of law regarding employer email policies: first, employers have a property interest in their email systems, and may, therefore, create email policies prohibiting non-work related emails including Section 7 related communications. Second, employers may enforce email limitations differently between union and non-union related emails, so long as the enforcement is not made "along Section 7 lines." This Article analyzes Register Guard and its potential impact on employers, and includes practice pointers for employers generating and enforcing email policies to avoid violating the National Labor Relations Act.
Table of Contents
Introduction
Facts Behind Register Guard
NLRB Rules That Employees Have No Right to Discuss Section 7 Matters Over
Employer Email Systems
Register Guard May Have Limited Impact in Tech Savvy Workplaces
NLRB Adopts a New Test for Unlawful Discrimination Under NLRA Section 8(a)(1)
Repercussions of Register Guard : Employers Beware of the Effects of Unequal Email
Policy Enforcement
Conclusion
Practice Pointers
Introduction
1 In Register Guard ,(fn2) the National Labor Relations Board (NLRB) made two controversial rulings regarding employer email policies.(fn3) First, the NLRB established that employers(fn4) have a property interest in their email systems, similar to an interest that an employer may have in a bulletin board or telephone.(fn5) Second, the NLRB adopted a new test that redefines unlawful enforcement of email policies under the National Labor Relations Act (NLRA).(fn6) As a result these rules, employers may prohibit employees' "non-job-related solicitations," so long as face-to-face communication alternatives exist.(fn7) In addition, employers who broadly prohibit "non-job-related solicitations" may allow for personal "non-job-related solicitations," but may still enforce the prohibition against employees who send union-related emails. This rule applies to protect employer enforcement strategies as long as decisions are not made "along Section 7 lines."(fn8)
2 Prior to Register Guard , the NLRB had not directly addressed whether employer email systems constituted property, oral solicitation, or written distribution(fn9) for the purposes of union organizing during non-work times.(fn10) Although earlier decisions interpreting Section 7 had analogized employer email systems to bulletin boards or telephones, there was no ruling regarding employee use of employer email systems.(fn11) The rules announced in Register Guard , however, change how employers may craft and enforce their email policies. This Article provides factual background on the Register Guard decision and explains the two changes in NLRB policy. Furthermore, this Article concludes by providing pointers for employers creating and enforcing email policies to avoid violating the NLRA.
Facts Behind Register Guard
3 The conflict in Register Guard arose after an employee sent union-related emails on an employer owned email system. Suzi Prozanski (Prozanski), an employee and union president at The Register Guard (the "Guard"), violated the Guard's "Communication Systems Policy" (CSP) by sending three union-related emails on the company's email system.(fn12) The CSP prohibited employees from using the employer's email system for "non-job-related solicitations." The Guard, however, had previously failed to strictly enforce the CSP.(fn13)
4 In general, the Guard knew that employees sent personal emails such as "baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking . . . ."(fn14) Despite these personal emails, there was no evidence that the email system was used to "solicit support for or participation in any outside cause or organization other than the United Way," a charity supported by the company.(fn15) Nevertheless, Prozanski received a reprimand for violating the CSP after sending three contentious emails.
5 Prozanski's first email, sent from her work computer during a break period on May 4, 2000, discussed a union rally.(fn16) The second and third emails were sent from Prozanski's union office to Guard employees at their work email addresses on August 14 and August 18, 2000, and solicited support for the union.(fn17) At the administrative hearing considering the Guard's reprimand, the Administrative Law Judge (ALJ) concluded that the Guard violated the NLRA. The Guard discriminatorily enforced the "non-job-related solicitation" policy against union-related email, while at the same time permitted emails that similarly violated the policy.(fn18) The ALJ held that the Guard violated Section 8(a)(1) of the NLRA,(fn19) in addition to violating Sections 8(a)(1), 8(a)(3), and 8(a)(5) for other reasons related to the email policy.(fn20) The NLRB reviewed this ruling in Register Guard .
NLRB Rules That Employees Have No Right To Discuss Section 7 Matters Over Employer Email Systems
6 The NLRB in Register Guard held that employers have property interests in their email systems, thereby defining how Section 7 of the NLRA fits in the modern workplace. Generally, employees have rights to communicate with one another under the NLRA. Section 7 of the NLRA protects employee rights to engage in certain concerted activities,(fn21) and states the following: "[e]mployees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ."(fn22)
7 Section 7 protected activities include the equal right of association at the workplace to discuss labor-related issues.(fn23) For example, employees have the right to communicate about certain matters at the worksite during non-work times, such as lunch or breaks.(fn24) An employer may violate the NLRA by "interfer[ing] with, restrain[ing] or coerc[ing] employees in exercising the rights guaranteed in section 157 [Section 7] of this title."(fn25) Differential treatment of union-related activities, or discriminatory treatment, violates this section and is discussed later in this Article.
8 Although employees have a right to communicate, employers may limit employee modes and methods of communication.(fn26) For example, the NLRB has held that employers may lawfully limit employee use of employer-owned bulletin boards and telephones.(fn27) Likewise, in Register Guard , the NLRB classified employer email systems as property similar to a telephone, which may be restricted.(fn28) Because employers have the right to regulate their property, employees are not, therefore, entitled to communicate on employer email systems under Section 7 where face-to-face communication alternatives exist.(fn29) The NLRB disregarded any differences between telephones and email systems, because sending email does not "tie up the line" like a telephone call.(fn30) As such, the bar on "non-job-related solicitations" in place at the Guard was upheld as a valid exercise of the employer's property right.(fn31)
9 The ruling in Register Guard continues to maintain precedential value. In Henkel Corp. , for example, the NLRB upheld the validity of "[e]mployer's Internet rule [that] prohibits 'non-job-related [e-]solicitation' in its entirety" during all hours.(fn32) The petitioning employees in the case sent union-related emails on the employer email system, as well as telephone, text messages and fax messages.(fn33) The employees claimed that the employer's communications policy(fn34) was discriminatorily written and enforced.(fn35) Relying on Register Guard, the NLRB found for the...
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