After holding employers in suspense for several years, the National Labor Relations Board (“NLRB”) has recently issued its much-anticipated ruling on the application of the National Labor Relations Act (“NLRA”) to restrictions on employee use of employer-provided e-mail systems. Guard Publishing Co. d/b/a Register-Guard, decided on December 16, 2007, held that the NLRA does not grant employees any inherent right to use an employer’s e-mail system for union-related communications and gave employers broad latitude to implement and enforce workplace policies restricting employee e-mail use.

The NLRB’s Decision in Register-Guard 

Register-Guard involved an employer’s policy that prohibited employees from using the employer’s e-mail system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” The employer disciplined an employee who was the president of the employees’ union for using the employer’s e-mail system to send or deliver three e-mail messages to fellow employees. One message merely clarified a misleading communication from the employer relating to a union rally, and the other two messages urged employees to take an active part in supporting certain union activities. The union filed unfair labor practice charges alleging that the employer had violated the NLRA by implementing an e-mail policy that interfered with employees’ NLRA right to engage in union activities and by discriminatorily enforcing the e-mail policy against the union president while permitting employees to send nonbusiness-related e-mail messages that did not relate to the union.

In a 3-2 decision, the NLRB held that the e-mail policy did not unlawfully interfere with NLRA rights. In reaching this conclusion, the NLRB refused to treat e-mail communication as the equivalent of face-to-face communication between employees. By so doing, it chose not to apply the well-established body of NLRA law dealing with restrictions on oral solicitation on behalf of a union, which would generally have forbidden any restrictions on solicitations not occurring during working time. Instead, it applied the body of NLRA law dealing with employee use of employer-provided equipment (such as telephone systems and bulletin boards). Under that body of law, employees have no inherent right under the NLRA to use the employer’s equipment for union-related communications, and employer restrictions on the use of its equipment are lawful as long as they are not discriminatory. Because the employer’s prohibition against the use of its e-mail system for nonbusiness-related solicitations in this case was not facially discriminatory against union-related solicitations, the NLRB held that the policy was lawful.

The NLRB also held that the employer’s discipline against the union president/employee for sending the two e-mail messages urging employees to participate in union activities was not unlawfully discriminatory. In reaching that conclusion, the NLRB rejected earlier cases indicating that any permitted nonbusiness-related use of employer equipment opened the door to use of the equipment for union purposes. Instead, the NLRB adopted the position that unlawful discrimination against union-related use of employer equipment occurs when the permitted non-union use of the equipment is similar to the prohibited union-related use. Thus, the NLRB reasoned, an employer could lawfully ban e-mail solicitations on behalf of any outside organization while permitting other personal use of its e-mail system. The NLRB also suggested that an employer could lawfully permit certain types of solicitations (for example, charitable solicitations) while prohibiting other types (for example, noncharitable or commercial solicitations), as long as the distinction is not based on NLRA-protected activity. Because there was no evidence in this case that the employer had ever permitted e-mail solicitations on behalf of any outside organization (other than solicitations in support of an employer-sponsored United Way campaign), the NLRB held that the employer did not unlawfully discriminate against the union president/employee for sending e-mail solicitations for union-related activity. The NLRB concluded, however, that the employer had discriminatorily disciplined the union president/employee for sending an informational e-mail message responding to an earlier misrepresentation by the employer because that message did not constitute solicitation prohibited by the employer’s policy and was the same type of e-mail communication that the employer had historically permitted.

Practical Implications

The lingering doubts about the legality of prohibitions against nonbusiness use of employer e-mail systems are largely resolved by the Register-Guard decision, and the NLRB has given employers broad latitude to fashion e-mail policies that restrict employee e-mail use. The Register-Guard decision does not mean, however, that restrictive e-mail policies will be free from challenge under the NLRA in all situations. The NLRB left open the possibility that different standards might apply to e-mail policies in situations where e-mail communications have effectively replaced face-to-face communications or where employees have no realistic opportunity for face-to-face communications (for example, situations where employees work from home offices or on the road and communicate with coworkers exclusively by e-mail). The NLRB also indicated that a restrictive e-mail policy could be found unlawful if it was implemented for the purpose of interfering with employees’ NLRA rights, and of course, policies that expressly prohibit union-related e-mails would be facially unlawful.

Regardless of whether a union currently represents the work force, employers that provide e-mail access to employees should review their e-mail policies and practices to ensure that they are well-tailored to meet business needs and are enforced in a consistent and nondiscriminatory fashion. Although Register-Guard indicates that most employers could lawfully adopt a policy barring all nonbusiness use of their e-mail systems, such broad policies are, as a practical matter, almost impossible to enforce consistently. As a result, employers would be wise to consider more manageable restrictions on employee e-mails, such as the restriction at issue in the Register-Guard case, which prohibited non-job-related e-mail solicitations.