Employer Control of the Ether: Email, the Internet and the Employee

Are you worried about what your employees are doing with this wonderful new tool you have given them to assist them in doing their jobs? Aside from all the things you have thought about, have you considered whether this tool is being used by the employees themselves or by outsiders for union organizing or union related purposes?

Answers to some important questions are beginning to emerge from proceedings before the National Labor Relations Board.

  • One of your employees becomes aware of a strike threat against one of your vendors and circulates an e-mail urging your employees to support the strike, adding the statement that anyone crossing the picket line “will suffer the consequences.” Do you know the difference between “individual” or “concerted” activity?
  • You publish a new vacation policy. One of your employees drafts and circulates an e-mail to all employees making negative comments on the new policy as compared to the old policy. The e-mail contains some flippant and grating language. Was the activity of the employee for “other mutual aid or protection” and, therefore, protected under the National Labor Relations Act?
  • You allow your employees to use your e-mail to distribute (and allow employees to print and store) messages on such topics as boredom, drugs, TV programs, pet care, favorite recipes, etc., but you prohibit employees, whether or not union represented, from using your e-mail to distribute any union literature or notice. What is the effect of discriminatory enforcement of e-mail policies during a union organizing campaign?
  • Your e-mail policy clearly states that your computer resources are not to be used for non-business, unauthorized or personal purposes. During a union organizing campaign, you discipline some union activist employees for violating this policy because they used your e-mail system to send union campaign materials and to download information from the union’s web site, using your internet connection. How can e-mail policies be overly broad and, therefore, facially unlawful under the National Labor Relations Act?
  • Your employees seek to rid themselves of their union and file a decertification petition with the NLRB. You become aware that your employees are using your e-mail system to support the decertification petition but you do nothing to stop it. When the incumbent union asks for the same opportunity you tell them “No.” Does union organizing activities that are conducted by e-mail constitute unlawful solicitation or unlawful distribution?

Because of our firm’s frequent appearances on matters coming before the NLRB, the Regional Director of the NLRB’s Region 7 has permitted us to make available to our clients, and others who may be interested, a copy of a presentation made by Board Attorney, Mary Beth Foy on the kinds of employee e-mail activities that are protected under the National Labor Relations Act.

If you are interested in seeing the full presentation you may contact any of the lawyers in our Labor and Employment Law Practice Group.