Battista Board Oks
Employer’s E mail Ban
One of his Final Shots
In one of the NLRB’s more bizarre rulings, an employer’s restriction on e mail messages was upheld this past week. Although helpful to employers generally, this decision typifies the misperception of what e mail is, and the degree to which it varies from face-to-face verbal exchanges. The case, The Register Guard __NLRB__ (December 16, 2007), may leave some employers confused about what is legal and what is not.
This case was decided on the last day of Chairman Battista’s controversial term, Battista having been appointed by President Bush six years ago, with what union supporters consider to be an agenda to gut the law of employee rights.
The policies at issue directed employees to refrain from sending e mail for “non-job-related solicitations” for outside organizations. Suzi Prozanski, a worker at an Oregon newspaper and president of the Newspaper Guild there, had sent co-workers three e mail messages about marching in a town parade and wearing green to show support for contract negotiations.
The Board ruled that employers have a “property interest” in sponsoring e mail that primarily exists to facilitate job-related communications, and that this interest outweighs the right of employees to engage in communications pertaining to outside organizations. Citing a key Seventh Circuit decision on the right of employers to restrict bulletin board postings, Guardian Industries v. NLRB, the Board held that the newspaper could permit some e mail communications that were non-job-related but could ban any such communications that represented solicitations for outside organizations. Hence an employer could permit for-sale and wedding e mails, but ban group or organizational messages.
The Board went on to rule that an exception to the rule permitting discrimination between personal and group-related e mail was the use of e mail for charitable organization activities.
Applying The Register Guard may be problematic. E mail is arguably much more like face-to-face interaction or sending notes back and forth than using an employee bulletin board. A bulletin board is a static, physically permanent site whose use is inherently confined to working hours. E mail happens anywhere, anytime, and the notion that it retains a proprietary identity of the employer seems naïve, if not dangerously anachronistic.
The reality of employee e mail use, like restricting the use of personal calls on company time, is such that the logical choices are only two: make no restrictions on e mail content, or ban all personal use of e mail, period. Of course, profane and abusive e mails can be prohibited, but distinguishing between “outside” and “personal” e mail content is not a task to impose on managers.
If it is imposed, questions will arise that will be difficult to answer: When does e mail about unionizing become e mail related to an “outside organization”? If employee X e mails employee Y about going for coffee to meet with employee Z to discuss how lousy the pay is at the company, is this e mail of the sort banned by the employer rule? “We’re going for coffee to talk about getting better benefits here. Wanna come with?” could be a non-job related solicitation involving an outside organization.
E mail rule-making and enforcement in light of this case are not going to be unambiguous. Drafting a policy and procedure for posting or for your employee manual will have to be a careful and thoughtful process.