E-Mail Solicitation Decision Gets Second Look

(Published July 14, 2009)

 

In 2007, the National Labor Relations Board (NLRB) ruled that an employer can have a policy restricting employees from using company e-mail to send union-related messages even though, in practice, some personal e-mails are allowed.

 

The employer had a written policy that prohibited the use of e-mail for "non-job-related solicitations."  The employer, however, allowed employees to e-mail jokes, baby announcements, party invitations, ticket offers, and the like.  The maintenance and enforcement of the policy came under fire after an employee received two written warnings for sending union-related e-mails.

 

Previously, if an employer allowed employees to send personal e-mails, but prohibited employees from sending union messages, it would generally be considered an unfair labor practice under the National Labor Relations Act (NLRA).  The Register Guard decision essentially allows employers to distinguish between:

• charitable solicitations (e.g., Red Cross) and non-charitable solicitations (e.g., union);
  
  
• solicitations of a personal nature (e.g., car for sale) and solicitations for the commercial sale of a product (e.g., Avon products);
  
  
• invitations of a personal nature and invitations for an organization; 
  
  
• solicitations and mere talk; and
  
  
• business-related use and non-business-related use.

An employer may make such distinctions as long as there is no evidence that the employer is acting in a manner that discriminates against union activity.  (The Guard Publishing Co., d/b/a The Register Guard, 351 NLRB No. 70, 2007)

 

Earlier this month, the District of Columbia Circuit Court of Appeals reversed the Board's decision that the employer's discipline of the employee was lawful and remanded the matter for further proceedings.  The court did not address the Board's holdings that employers can restrict e-mail to business use and that employers can distinguish between solicitations on behalf of an individual and solicitations on behalf of an organization.  The court held that neither the employer's policy nor the two written warnings made this distinction.  "[S]ubstantial evidence does not support the Board's determination that [the employee] was disciplined for a reason other than that she sent a union-related e-mail."