January 2007 E-Alert

Virtually all businesses have e-mail or other computer-based communication systems.  This computer-based technology is essential to the day-to-day operations of a business and represents a significant up-front financial investment that requires expensive on-going maintenance.

Recognizing the value and investment in these systems, many companies, but not all, implement policies designed to minimize communication that is not work related.  To the extent such policies exist, are not enforced or are enforced in a disparate manner, they may fail to address issues arising under the National Labor Relations Act.  This failure may have surprising and wide-ranging consequences.

The National Labor Relations Board has scheduled oral argument on Tuesday, March 27, 2007, in a case entitled The Guard Publishing Company, d/b/a The Register-Guard to address multiple issues that impact virtually every business that utilizes computer-based technology.  Those issues include:

1. Do employees have a right to use their employer's e-mail system (or other computer-based communication system) to communicate with other employees about union or other concerted, protected matters?  If so, what restrictions, if any, may an employer place on those communications?  If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
   
    
2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees' use of their employer's e-mail system?  If so, how should those rules be applied?  If not, what standard should be applied?
   
    
3. If employees have a right to use their employer's email system, may an employer nevertheless prohibit e-mail access to its employees by non-employees?  If employees have a right to use their employer's e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
   
    
4. In answering the foregoing questions, of what relevance is the location of the employee's workplace?  For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
   
    
5. Is employees' use of their employer's e-mail system a mandatory subject of bargaining?  Assuming that employees have a Section 7 right to use their employer's e-mail system, to what extent is that right waivable by their bargaining representative?
   
    
6. How common are employer policies regulating the use of employer e-mail systems?  What are the most common provisions of such policies?  Have any such policies been agreed to in collective bargaining?  If so, what are their most significant provisions and what, if any, problems have arisen under them?
   
    
7. Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?

The Lowenbaum Partnership would encourage all of you to review your current policies and, if necessary, consider amendments to those policies.

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