Long-Awaited NLRB Decision – Allows Limits On Employee Use Of Information Systems For Non-Business-Related Purposes

In a January 2007 E-Alert, The Lowenbaum Partnership advised clients of a case pending before the National Labor Relations Board (“NLRB” or “Board”) which would impact virtually every business utilizing computer-based technology. On December 16, 2007, the Board issued its long awaited decision in Guard Publishing d/b/a Guard-Register, 351 NLRB No. 70, and addressed employer e-mail policies which prohibit use of systems by employees for union activity. In its decision, a three-member Board majority answered the following questions:

1. Whether an employer violates the NLRA by maintaining a policy prohibiting the use of e-mail for all “non-job-related solicitations?”

2. Whether an employer violates the NLRA by prohibiting union-related e-mails while allowing some personal e-mails?

3. Whether an employer violates the NLRA by disciplining an employee for sending union-related e-mails and, if so, under what circumstances?

In answering the above questions, the Board concluded as follows:

1. Employees have no statutory right to use an employer’s equipment or media for Section 7 (i.e., union) communications.

2. An employer may lawfully prohibit, under appropriate circumstances, union-related e-mails while allowing some personal e-mails.

3. The issuance of discipline for union-related communications (which was not a union solicitation) violated the NLRA where evidence existed that employees had been allowed to send a variety of non-work-related emails.

The NLRB’s decision in Guard-Register establishes new standards for evaluating the lawfulness of employer email policies; the prohibitions contained in such policies; and the appropriate framework to analyze “discriminatory enforcement” of such policies. TLP strongly recommends that employers review and revise current email policies to enhance their utilization in light of the flexibilities provided by Guard-Register. For those employers without an email policy, the issuance of Guard-Register provides an excellent opportunity to proactively issue a lawful policy.

As always, the drafting and implementation of any Company policy should consider the discrete human relations issues applicable to that particular Company, as well as any bargaining obligations which may exist. TLP stands ready and able to aid clients in assessing the impact of Guard-Register to their operations and drafting and implementing a compliant policy.

Congress Amends the Family and Medical Leave Act of 1993 With Respect to Leave Related to Family Members of Individuals in the Armed Forces

On December 14, 2007, Congress approved a final version of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2008. It is anticipated that the President will sign this Act into law. Section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (“FMLA”) by expanding leave rights for the spouse, child, parent, or the next of kin of a member of the Armed Forces, including the National Guard or Reserves. In general, the NDAA provides for up to 26 weeks of FMLA leave to care for an injured service member and creates leave entitlement for a new category of employees – those who have a spouse, parent or child called to active duty.

Specifically, with a “qualifying exigency”, the NDAA provides that an employee may be entitled to up to twelve weeks of unpaid leave when his or her spouse, child, or parent is on or called to active duty in the Armed Forces. The Department of Labor has been instructed to define by regulation the phrase “qualifying exigency” in order to provide clear guidance to employers as to what circumstances create leave entitlement.

In addition, under the NDAA, an employee who is a spouse, child, parent or next of kin of a service member who suffers a serious injury or illness in the line of active duty may be entitled to up to 26 weeks of unpaid leave (significantly more than the 12 weeks generally allowed for leave pursuant to the FMLA) to care for the injured service member. Under the Act, a serious injury or illness means an injury or illness incurred in the line of active duty that may render the service member unfit to perform the duties of the member’s office, grade, rank, or rating. To be covered, the service member must be undergoing medical treatment, recuperation, or therapy, be in outpatient status, or be otherwise on the temporary disability retired list.

Please note that the Uniformed Services Employment and Reemployment Rights Act and various state military leave laws also provide certain employees who left their civilian employment for service in the armed forces reemployment rights and protections upon their return.

Employers should amend their FMLA policies to provide notice of these new FMLA leave entitlements. Please feel free to contact any of The Lowenbaum Partnership attorneys if you have questions or require assistance in amending your FMLA policies.