New Rules in Battle to Control Employee E-mail Use

By Christina Lopez-Nutzman

In the era of electronic communication, employers have struggled with balancing the rights of employees to organize collectively under the National Labor Relations Act (NLRA) by using company e-mail systems to communicate with fellow employees and employers' rights to control their property. While employees are allowed to utilize company-owned computers to e-mail others within an organization, it does not mean they have an absolute right to use e-mail for items that are not job related. As of December 2007, when the National Labor Relations Board made a decision on The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007), employers that maintain a policy prohibiting employees from using company-owned computer systems for "non-job-related solicitations" do not violate the NLRA.

What does this mean for Employers? Until recently, employers were faced with potential challenges by unions for simply maintaining e-mail policies banning personal use of e-mail because it could potentially restrict an employee's right to organize under the NLRA. In The Register-Guard, the Board essentially declared e-mail systems property of employers, and thus employers have the right to restrict non-business use of such property.

As a result of The Register-Guard decision, when a union challenges an employer's e-mail policy it must prove unequal treatment of equals. In other words, if an employer is ever charged with disparately applying its e-mail policy, the challenging party will have to prove that there was disparate treatment of activities or communications of a similar character. An employee or union can not charge an employer with disparate application of its e-mail policy simply because it allows employees to send out e-mails regarding baby showers, automobiles for sale, jokes, social gatherings, etc. and not e-mails regarding outside organizations. If an employer prohibits solicitation, this means no e-mails regarding fundraising for charities or union activities because they are considered outside organizations.

Employers must have e-mail and solicitation and distribution policies in their employee handbooks that have been reviewed by legal counsel to ensure employers the rules for such policies are clearly defined.

Questions? For questions or comments concerning this topic, please contact

Attorney Christina Lopez-Nutzman in our Chicago office at (312) 629-9300, or chlopez@chgo.w-p.com.