On December 16, 2007, the National Labor Relations Board (“NLRB”) held that employers may prohibit employees from using company e-mail systems to distribute union-related information. The NLRB found that employees do not have a statutory right to use company equipment or media for union solicitation purposes. The holding provided clarification that employers may draft and enforce a policy prohibiting the use of the company’s e-mail system for “non-job-related solicitations.”

In a 3-2 ruling, in The Guard Publishing Company, d/b/a The Register Guard, the NLRB held that “An employer has a basic property right to regulate and restrict employee use of company property.” In Guard Publishing, the employer implemented a written policy stating that employees could not use communication systems for the purpose of “commercial ventures, religious or political causes, outside organizations, or other non-job related solicitations.” An employee, who also served as the union’s president, sent union-related e-mails, using the employer’s e-mail system, to the work e-mail addresses of 50 employees. The employer issued two written warnings to the employee for her unapproved use of the e-mail system. The union claimed that this was a violation of the National Labor Relations Act. The NLRB disagreed and held that the employer’s policy was non-discriminatory in both language and enforcement.

Under the new decision, employers can allow employees to use company e-mail systems for personal communications, like for-sale notices and wedding announcements, while prohibiting e-mail communications related to outside organizations and solicitations, such as the distribution of Avon literature or union correspondence. The Guard Publishing Company decision also allows employers to carve out an exception for communication pertaining to charities, such as the United Way, when they draft a policy prohibiting e-mail related to other organizational activities.

Employers are encouraged to review their existing electronic communication policies and consider drafting language in accordance with the holding in Guard Publishing.