The NLRB is Rocketing into Cyberspace - Will Your Policies Remain Online?

April 24, 2002

If it’s not already the case, virtually every employee will soon have access to e-mail at work. However, increased reliance on e-mail in the workplace presents employers with potential new problems under the National Labor Relations Act ("NLRA"). Unfortunately, many employers are not prepared to address the unique issues the NLRA creates regarding e-mail use.

One reason employers are ill prepared is that many assume they have complete authority to ban all non-business use of e-mail and to discipline employees for sending e-mail messages that management considers inappropriate. However, employees and labor unions have been turning to the National Labor Relations Board ("NLRB") to limit employers' control over their e-mail systems. The rules of the NLRB, however, are not yet technologically up-to-date, and the agency is only beginning to tackle the issues arising in today's computerized workplace.

The NLRA protects not only union activity but also other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and thus protects employees’ rights to engage in group actions to influence working conditions, even if those actions are not specifically union-oriented.

In one recent case, the NLRB held that e-mail communication may qualify as protected concerted activity under the NLRA. In Timekeeping Systems, Inc., the NLRB reversed the discharge of a computer programmer who criticized a new company vacation policy via e-mail. The NLRB concluded that because the employee's e-mail message primarily sought the assistance of other employees in getting the old vacation policy reinstated, it qualified as a form of concerted activity.

By contrast, in Washington Adventist Hospital, the NLRB reached a somewhat different conclusion. A pharmacist was fired for sending a system-wide computer message to hospital co-workers to protest impending layoffs, and the NLRB ruled that the message did not qualify for protected status because it interrupted the work of more than 100 computer users at a peak time in the hospital, creating a potential hazard and disrupting patient care.

The NLRB has indicated in advisory memos that in some workplaces, a policy banning all non-business and/or personal use of e-mail may violate the NLRA because it acts as an unreasonable impediment to self-organization. In one such case, the employees used the e-mail system to distribute union literature. The NLRB General Counsel's office found that the employees communicated with one another and with management regularly and primarily by e-mail and performed a significant amount of their work on the employer's computer system, so the computer network became the employees' "work area." The General Counsel's office concluded that the flat ban on personal e-mail, the sole method of communication through this computerized "work area," effectively banned protected solicitations and was unlawfully overbroad.

In yet another case, the General Counsel's office upheld an employer's rule limiting employee use of e-mail to company business because the employees involved performed manual production and distribution work and generally had no access to e-mail or computers. Since those employees did not use e-mail or computers as part of their regular work, a computer “work area" did not exist for them. The General Counsel's office found that the employer's ban was not an overbroad restriction of work area use.

While these advisory memos from the General Counsel are not binding, they do offer guidance on the type of e-mail policies that will withstand NLRB scrutiny. Generally, the more e-mail communication is used in the workplace, the less restrictive an e-mail policy can be in terms of employee communication that might constitute protected concerted activity.

Moreover, if an employer allows employees to use e-mail for extracurricular activities, such as social announcements or sales of goods, but shuts out labor unions or concerted communications, a claim of unfair labor practice based on discriminatory enforcement could ensue.

It’s likely the NLRB will treat e-mail like it treats bulletin board usage in this regard. While an employer has the right to restrict the use of company bulletin boards, it may not exercise that right discriminatorily so as to restrict postings of union materials. Similarly, an employer could ban the personal use of its computers and e-mail system. However, if the employer permits e-mails of a personal nature, notwithstanding its rule, it cannot exclude the union as a topic of discussion. For example, in E.I. du Pont de Nemours & Company, the NLRB ruled that the company violated the NLRA when it allowed workers to use the e-mail system to distribute personal messages but not to distribute union literature.

We are not suggesting that employers rush to revoke e-mail policies limiting or banning personal or non-business use, but it must be understood that such policies now carry increased risk if challenged before the NLRB. Additionally, as with any policy limiting employee solicitation and speech, it behooves employers to be diligent in ensuring that the policy is non-discriminatorily enforced when it comes to protected concerted activity and activities on behalf of a union.

Employers should act now to review, develop and implement polices which address e-mail and other cyberspace issues that might arise under the NLRA. At a minimum, employers should both limit expectations of privacy by or on behalf of employees when they utilize the employer’s system and reserve the right to monitor e-mail usage and messages. Confidential employer-controlled passwords and limited access to the system through use of those passwords should be a high priority. Policies addressing bans and limits on solicitation and distribution by or on behalf of employees need to be dusted-off and "technology-proofed." These steps will position employers to maximize the benefits e-mail systems have to offer while minimizing the risks of employee disputes, litigation and liability before the NLRB.

This article was previously printed in HR Magazine.

For more information, please contact jlyncheski@cohenlaw.com or lheller@cohenlaw.com.