July 29, 2013

NLRB Turns Its Focus To Employer E-Mail Policies

According to the National Labor Relations Board, employers are free to have policies limiting e-mail usage for business purposes only.  They are just not free to enforce it.

At a Weyerhauser plant in Washington state, e-mail use is limited for all employees to “business purposes only,” with limited exceptions with managerial consent.  The National Labor Relations Board ruled that Weyerhauser’s policy was “facially neutral,” meaning that it was lawful because it did not single out e-mails based on union content.

In 2010, however, the company became unhappy with what it deemed was the “unacceptable volume” of e-mails sent by union representatives during work hours.  So, it issued a written Notice instructing that any e-mails by union representatives “should be focused on the process that needs to take place rather than protracted dissertations or arguments.”

The NLRB found that this Notice discriminated against union speech.  While the NLRB appeared sympathetic to the notion that an employer could lawfully restrict employees from overusing e-mail for non-work-related purposes, it also required the employer to justify the need for such a policy by showing that union-related e-mails had become excessive.  In this case, it found that many employees used e-mail for personal matters like family issues and telling jokes and for that reason, the employer had not provided sufficient justification for the restriction on union-related speech in the Notice.

The practical implications of this decision are what is most significant.  Most employers have some type of policy limiting e-mail use for professional, work-related purposes, but at the same time, most of those policies recognize that, from time to time, employees have a legitimate need to communicate briefly about personal matters by e-mail.  Employers include that exception to the general rule to maintain employee morale – blanket bans on all personal e-mails seems draconian and unnecessary.  And, for that same reason, generally speaking, employers do not police the use of e-mail by their employees.

The NLRB, however, turns this delicate balancing act into a black or white proposition.  Either you ban all personal e-mails or you don’t.  Either you police your employees’ use of personal e-mails or you don’t.  And if you don’t, you cannot put into place any restrictions , no matter how significant the need.

As with every decision issued by the NLRB, this decision is of suspect precedential value, not only because three federal courts of appeals have found that the NLRB is not properly constituted, but also because this decision is subject to review on the merits by an appeals court.