Related Practices

• Employment Litigation
• Labor and Employment

The NLRB has finally issued its long awaited decision in Register-Guard, 351 NLRB No.70, allowing employers to restrict employees’ use of email for union related solicitations.  The controversial 3-2 ruling is dated December 16, the last day of Board Chairman Robert J. Battista’s term of office.

 The case involves the lawfulness of a company policy prohibiting employee use of its email system for “non-job related solicitations”, and the question of whether the company could lawfully discipline an employee under the policy for sending email messages telling employees about a union rally and soliciting support for union activities.

 The NLRB majority found the company’s communications policy prohibiting “non-job-related solicitations” was lawful.  In doing so, the Board explained that email use is governed by its decisions dealing with an employer’s equipment, such as bulletin boards, telephones and televisions, in which the Board “has consistently held that there is no statutory right . . . to use an employer’s equipment or media; as long as the restrictions are non discriminatory.” 

 Significantly, in considering the lawfulness of the discipline issued, the Board majority modified its approach in discriminatory enforcement cases to clarify that discrimination under the Act means drawing a distinction between activities of a similar character.  Under this approach, an employer can uniformly enforce a policy that draws a line between charitable solicitations and non-charitable solicitations, solicitations of a personal nature and solicitations for commercial sale of a product, invitations of a personal nature and invitations for an organization, and/or business related use and non-business related use.  In this case, the Board found that Register-Guard allowed personal use of email for social gatherings, jokes, baby announcements and similar personal items, but there was no evidence that it allowed email use to solicit other employees to support any group or organization.  Thus, the employer lawfully disciplined an employee for using email to solicit support for union activities.  However, the employer violated the Act by disciplining the employee for an email telling employees about a past union event because it was not a “solicitation” prohibited under the policy.

 Although the Board majority’s decision gives very helpful guidance for employers, it remains clear that lawful limitation of employee email use will require a carefully drafted policy which clearly establishes employee guidelines on permissible use of employer email systems in conformity with the new NLRB guidelines.

 If you have any questions, or would like to arrange to have your policy reviewed, please contact your Cohen & Grigsby’s labor and employment attorney.

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