United States: Business-Only E-Mail Policies Under Fire

Employer-provided e-mail systems have become a valuable and often necessary means of communication in the workplace. To maximize their investment in this technology, many employers have adopted policies restricting workplace e-mail use to business-related messages. Recently, the validity of such policies has been called into question by two Administrative Law Judge (ALJ) decisions analyzing e-mail policies under the National Labor Relations Act (NLRA), which protects, to some extent, the right of employees to communicate with one another concerning unionization and terms and conditions of employment. These two decisions, which reached potentially inconsistent conclusions, are currently being reviewed by the National Labor Relations Board (NLRB), which has not yet provided clear guidance on the legality of e-mail policies under the NLRA.

The first ALJ decision, issued in February 2002 in the case of Guard Publishing Co., involved a challenge to an employer’s business-only e-mail policy and its enforcement during contract negotiations with a union. The employer disciplined an employee who was a union officer for sending union-related e-mails to other employees. The union challenged this discipline, arguing both that the business-only e-mail policy was an impermissibly broad restriction on the right of employees to communicate about the union and that the employer discriminatorily enforced the policy against union-related e-mail messages but not against other nonbusiness messages. Relying on NLRB authority permitting employers to restrict employer-provided telephone systems and certain other types of equipment to business use, the ALJ upheld the employer’s business-only policy as a valid limitation on the use of its e-mail equipment, but also held that the employer violated the NLRA because it enforced the policy in a manner that discriminated against employees exercising their NLRA rights. For example, both managers and employees had sent and received e-mail messages regarding parties, jokes, community events, sporting events, births, and meeting for lunch, but had not been disciplined for these violations of the e-mail policy.

The second recent ALJ decision discussing e-mail policies was issued in November 2002. In that case, Prudential Insurance Co., the ALJ ruled that the mere existence of a business-only e-mail policy constituted improper interference with employees’ right to discuss unionization and justified setting aside the results of a union-representation election won by the employer. In reaching this conclusion, the ALJ relied heavily on the particular employment situation involved. The union was attempting to organize an insurance company’s agents, who were spread out across the country and often worked out of their homes or in individually-leased offices, rather than in a centrally located office. Recognizing the difficulty inherent in communicating union-oriented messages among employees in this situation, the ALJ noted that permitting union-related e-mail communications would not burden the employer or interfere with its operations. Thus, the ALJ found no justification for banning nonbusiness e-mails that would override the employees’ interest in communicating with each other about the union via e-mail. Significantly, the ALJ in Prudential Insurance Co., unlike the ALJ in Guard Publishing Co., distinguished e-mail communications from other forms of oral and written communication and determined that they should be analyzed under the NLRA in light of their unique properties. Therefore, the ALJ in Prudential Insurance concluded that NLRB cases permitting employers to prohibit employees from using other types of employer-provided communications equipment for nonbusiness purposes were not controlling. Given the absence of a substantial justification for the business-use-only e-mail policy and the adverse consequences that policy had on employees’ opportunity to communicate about unionization, the ALJ held that the e-mail policy improperly affected the outcome of the union election, thus resulting in the election results being set aside.

Both of these ALJ decisions have been appealed to the NLRB, which may adopt either or both rulings or issue its own analysis of the legality of business-use-only e-mail policies under the NLRA. Recognizing the importance of this issue, the Labor Policy Association, an organization for human resource executives, has asked the NLRB to conduct oral hearings on the issue of e-mail policies and provide employers with guidance on these policies. Until the NLRB provides further direction, employers should be aware that business-use-only e-mail policies may have adverse consequences under the NLRA.

Regardless of how the NLRB rules on this issue, it is clear that an e-mail policy that is not uniformly enforced can do more harm than good. Employers should therefore examine their e-mail policies in light of the uses and practices they actually permit. Employers that do permit some personal use of a company e-mail system might be best served by a policy that sets forth clearly defined, legally permissible limits on nonbusiness e-mail use.