Company E-Mail Rules--Are They Illegal?

Thousands of companies bar employees from using company e-mail systems for non-business purposes. A complaint recently issued by the National Labor Relations Board raises the possibility that such companies could be prosecuted if they keep workers from communicating about union activity--or organizing drives.

With millions of workers sitting in front of computer screens, the ability to use e-mail for union purposes is a tantalizing by-product of the information age. Opening up company e-mail systems would enable union workers to communicate with each other about grievances, bargaining, and direct actions. E-mail would also be available for union organizing.

In the case reported by Acting General Counsel Leonard Page, an employer announced a policy that "computer software may be used only for company business." When a worker sent out an e-mail message about an upcoming NLRB representation election, he was disciplined for violating the rule. When the worker went to the NLRB, Page authorized a complaint against the employer.

BACKGROUND

It has been long acknowledged that it is a violation of the NLRA for an employer to maintain overly broad rules restricting employee solicitations of fellow employees or the distribution of written materials.

The rule on solicitation was issued by the U.S. Supreme Court in 1945. The rule grants workers the right to speak with other workers about union and concerted activities during non-work time in either work or non-work areas. The rule on written materials is different. Because of the possibility of litter, an employer can prohibit distribution in work areas.

Which is e-mail--solicitation or distribution? If it is solicitation, it must be permitted in all areas. If it is distribution, it can be completely banned because, by definition, it must take place in a work area--at the computer.

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In the case involving the union election, Page concluded that the e-mail was more akin to solicitation than to distribution. Solicitation, he said, is designed to cause a response from the recipient, whereas distribution is a one-way communication, with its purpose being achieved when the message is received. E-mail resembles speech because it encourages or allows for a response from the receiver. Thus it is similar to a telephone call.

Unfortunately, Page's determinations are not final. His complaint must go to an administrative law judge, who can be appealed. With three vacancies on the five-person NLRB about to be filled by President Bush, and a General Counsel to be appointed as well, Page could be reversed. In the meantime, workers should assume that if they filed similar charges against their employers, an NLRB complaint would be issued. If the Board rules in favor of employee e-mail use, the battleground will probably turn to the definition of worktime. A rule prohibiting non-business-related e-mail during worktime is legal. For many workers, however, the definition of worktime is not crystal clear---for example, if they are allowed to take breaks on the honor system. During breaks, an employee must be able to send and read non-business-related e-mail.

FUTURE ISSUES

Even where an employer has a rigid break policy, if the policy has not been enforced in a uniform fashion, or if workers have been allowed at other times to talk with others or to leave their stations, it may be illegal to prevent employees from using small amounts of work time to send e-mail messages. And of course, the employer could not prohibit e-mail during the official break times.

Another issue is surveillance. Using a server, an employer can easily record e-mail messages and read them on a periodic or even instantaneous basis. Such surveillance may be challengeable under the NLRA as interference with concerted activity. It may also run afoul of federal and state laws prohibiting unconsented electronic interceptions. The eavesdropping laws carry heavy penalties, including the possibilities of punitive damages and criminal prosecution.

Robert M. Schwartz, a Boston labor lawyer, is the author of The Legal Rights of Union Stewards.