In Guard Publ'g d/b/a Register-Guard, 351 N.L.R.B. 70 (2007), the National Labor Relations Board ("the Board") tackled the issue of whether unionized employees can use their employer's company e-mail system in order to organize and promote union activity. In resolving this dispute, the Board focused on two key issues. The first issue was whether the employer violated federal law by having a workplace policy that prohibited use of company e-mail for "non-job-related solicitations." Second, whether the employer engaged in discrimination by enforcing that workplace policy against union-related e-mails and not against other personal e-mails.

On the first issue, the Board summarily found in favor of the employer writing that there is no "‘statutory right . . . to use an employer's equipment or media,'" as long as the restrictions are nondiscriminatory. Importantly, the Board analyzed the employer's e-mail system as part of its communications equipment, enabling the Board to write, when discussing company e-mail, "[a]n employer has a ‘basic property right' to ‘regulate and restrict employee use of company property.'"

Next, the Board relied upon the analysis of the Seventh Circuit Court of Appeals that "discrimination means the unequal treatment of equals" to adopt a new standard for analyzing discrimination claims. Specifically, the Board wrote that it was permissible for an employer to distinguish on any number of narrow grounds; e.g., between charitable and non-charitable, personal and commercial, and business-related use and non-business-related use. As applied to the case at hand, the Board found that the employer properly disciplined the employees for sending e-mails soliciting union participation because the employer did not allow employees to solicit support for other groups or organizations.

This decision will have important ramifications for all employers, including healthcare employers, because it recognizes the employer's right to regulate use of its computer systems in the workplace.