NLRB Revamps Communications Policy Pertaining to Email Communications

A sharply divided National Labor Relations Board (NLRB) ruled for the first time that employees have no right to use an employer’s email system for union communications and that employers may maintain a policy prohibiting employee use of the employer’s email system for “non-job-related solicitations.” It further held that an employer can enforce such a rule even if the employer allows employees to use the email system for personal or charitable communications.

In so doing, the Board modified its previous standard for determining whether an employer has discriminatorily enforced its communications policies against union activity by finding that there must be a specific finding of discriminatory motive. In other words, nondiscriminatory policies uniformly enforced, which happen to embrace union communications as well, will not be found unlawful. Thus, an employer’s policy may lawfully permit numerous kinds of non-work-related communications while still banning solicitations for unions and similar organizations. Only if an employer bars union communications while allowing communications for similar organizations will it be found to have violated the law.

This decision confirms the right of employers to prohibit employee use of email for union purposes, thus validating the email policies many employers have adopted. It also makes clear that an employer can adopt a policy that allows limited non-business use of email, including limited personal use and solicitations on behalf of charitable groups, yet still prohibit emails relating to other organizations, including unions. However, email and communications policies must be drafted with care in order to take advantage of the Board’s new standard. In light of this significant decision, employers should review their email, employee communications and solicitation and distribution policies with counsel.