In a case of first impression, the National Labor Relations Board (the "NLRB"
or "Board") recently ruled in Guard Publishing Co. that employers can
limit employee use of company e-mail systems for personal and other non-work
related purposes without violating the National Labor Relations Act ("NLRA"). In
the same decision, the Board also articulated a more relaxed standard for
determining whether an employer's personnel policies, including those involving
e-mail and use of company equipment, discriminate against employees in violation
the NLRA. The Board's ruling is good news for employers who want to adopt a
sensible e-mail policy that allows for limited personal e-mail while barring
non-work related solicitations.
In Guard Publishing Co., company policy provided that Guard
Publishing's communication systems and equipment were not to "be used to solicit
or proselytize for commercial ventures, religious or political causes, outside
organizations, or other non-job-related solicitations." Notwithstanding this
broadly worded policy, the evidence before the Board showed that the company was
aware that employees regularly used the company's e-mail system to send and
receive a variety of personal e-mails, including baby announcements, party
invitations, offers for sports tickets and requests for services such as dog
walking. However, there was no evidence indicating that employees used company
e-mail to solicit support or participation in any outside cause or organization
other than the United Way.
A dispute arose after the company disciplined an employee (who was also the
union president) for sending a series of e-mails to other employees regarding
Board's Ruling on Company E-Mail Policy
In addressing the issue of whether an employer has the right to regulate
employee use of its e-mail system, the Board was forced to balance two competing
principles – an employer's "basic property right" to regulate employee use of
company property and employees' rights under the NLRA to effectively communicate
with each other regarding terms and conditions of employment.
In balancing these two interests, the Board concluded that a company's e-mail
system was no different than other equipment maintained or provided by the
employer. As such, the Board ruled that an employee has no statutory right to
use her employer's e-mail system and employers may, therefore, limit or
completely restrict employee use of such systems as long as such restrictions
are not based on an employee's union status or other protected activity.
Board's New Relaxed Discrimination Standard
After concluding that an employer may restrict or limit the use of its e-mail
system, the Board then went on to narrow its long standing rules for determining
whether an employer's application of a neutral policy is discriminatory under
the NLRA. In the past, if an employer allowed employees to use its equipment for
any non-work related purposes, it could not then limit such employee
conduct when it related to union or other protected activity without violating
In this case, the Board majority specifically rejected this approach and went
on to articulate a new, more relaxed standard. Under the Board's new standard,
discrimination only occurs if an employer engages in "disparate treatment of
activities or communications of a similar character because of their union" or
other protected status.
Accordingly, an employer may "draw a line between charitable solicitations
and noncharitable solicitations, between solicitations of a personal nature
(e.g., a car for sale) and solicitations for the commercial sale of a product
(e.g., Avon products), between invitations for an organization and invitations
of a personal nature, between solicitations and mere talk, and between
business-related use and non-business-related use."
The Board's decision in Guard Publishing provides clear guidance for
employers who would like to implement a reasonable e-mail policy that takes into
account the realities of the digital-world in which we live. Adoption of a
policy that allows for limited personal use of a company's e-mail or other
communication systems, is permissible as long as such policies are clear and do
not discriminate based on whether the content is union-related.