Who Controls Your Email System -- You or Your Employees?
by Michael Fox
Normally the answer is clear — the employer. But the National Labor Relations Board's grant of a request for oral argument on the appeal of the ALJ's decision in The Guard Publishing Company, d/b/a The Register-Guard, Cases 36-CA-8743-1, makes it clear there is at least another side to be considered when the communications involve concerted activity under the NLRA.
The issue, much oversimplified is — can employers prohibit their employees from using the company's email system to discuss union issues.
But the issues are more complex, so much so the the Board has asked the parties (and amicus) to provide input in seven different areas. My thoughts in red:
1. Do employees have a right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non–job-related e-mails but not those related to union or other concerted, protected matters. [Could any employer actually stop all non-work related email activity even if it wanted to?]
2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees’ use of their employer’s e-mail system? If so, how should those rules be applied? If not, what standard should be applied? [Good luck to the Board in applying a 1947 statute to a 21st century workplace. If you can do it, what about trying your hand on the 1938 FLSA.]
3. If employees have a right to use their employer’s e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer’s e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
4. In answering the foregoing questions, of what relevance is the location of the employee’s workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer? [Just one more question to put on your checklist of items to think about when considering telecomuting employees.]
5. Is employees’ use of their employer’s e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer’s e-mail system, to what extent is that right waivable by their bargaining representative?
6. How common are employer policies regulating the use of employer e-mail systems? [A very high percentage I would hope.] What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
7. Are there any technological issues concerning e-mail or other computer based communication systems that the Board should consider in answering the foregoing questions? [Kudos to the Board for a very good question.]
Argument will be heard on March 27. If history repeats itself, it will be sometime thereafter before a decision is issued, followed by an appeal to a circuit court and at least a petition for certiorari, before we have a definitive answer.
Although given the powers of the Board to reconsider its positions, we know nothing is ever really final until the Supreme Court says so. See Weingarten Rights Do, Do Not, Do, DO NOT Apply to Non-Union Employees
for one such example.