Protecting your company's e-mail from union organizing

June 22, 2007

Excerpted from New York Employment Law Letter, written by attorneys at the law firm of Epstein Becker & Green, P.C.

by Peter M. Panken

Employers have the right to prohibit union solicitation in their workplace as long as their rules don't discriminate against their workers' rights to form, join, and assist a labor union. The National Labor Relations Board (NLRB) is now considering how those rights apply to e-mail solicitations.

Audio Conference: New Rules in Battle to Control Employee E-mail Use

What can employers prohibit union organizers from doing?
Consider the following scenario: Union organizers enlist an employee to e-mail organizing materials to his coworkers using the employer's e-mail system. With the touch of a button, every employee receives the solicitation.

The company has a rule that its e-mail system can be used only for business purposes. But its employees have sent e-mails containing jokes, betting pools, solicitations for gifts to pregnant coworkers, birthday greetings, and personal announcements. And the list goes on.

As labor and employment lawyers, we know employers can ban union solicitation during employees' working time, distribution of union literature in working areas, and solicitation and distribution of union-organizing materials by outsiders on the organization's premises. But if the business allows other kinds of solicitations (except minor charitable requests), then it can't bar similar union-organizing activities.

One federal appeals court has just ruled that an employer committed an unfair labor practice by prohibiting e-mail containing union-related materials when it didn't monitor and enforce its rule against charitable solicitations and personal communications.

Recently, the court found that the Richmond Times-Dispatch couldn't bar its employees from using the corporate e-mail system for union business when it didn't enforce its rule against workers who sent e-mails to inform others about their personal lives, arrange social events, and inform coworkers about charities.

At the same time, the NLRB has heard oral arguments in a similar case and intends to create rules governing the use of employers' e-mail systems for union organizing. Although we can't anticipate what the new rules will be or whether courts will uphold them over the next few years, it's certainly time to make some basic decisions.

Compounding the issue, the U.S. House of Representatives has passed a bill that will force employers to recognize unions on the basis of signed authorization cards -- commonly called a card check -- without having a secret-ballot election. President George W. Bush has vowed to veto the legislation if it reaches his desk, but a new president may well sign it. The time for vigilance is now.

Find the latest information on the proposed Employee Free Choice Act legislation in 2009

How can an employer protect its e-mail system?
First, employers should have a rule limiting your e-mail system to business purposes. The rule won't be popular with employees, who are used to communicating with their coworkers via e-mail. But without a rule, a business' system is vulnerable, and promulgating the rule when a union-organizing campaign has begun is seen as a violation of employees' rights.

Next, employers must make it clear that their e-mail system will be monitored. That way,employees don't have an expectation of privacy. Finally, make reasonable efforts to enforce the rule. Issue disciplinary warnings to employees who violate the policy, and institute a progressive discipline system for employees who repeatedly refuse to follow it.

And stay tuned: Further developments should occur soon.

Learn more about preventing labor unions from organizing your company in 2009 at the Labor Union Avoidance Master Class

Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from NEW YORK EMPLOYMENT LAW LETTER. NEW YORK EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in New York employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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