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Urgent: Employers can restrict your e-mail

Late last year, the National Labor Relations Board made a decision that could impact employee use of e-mail across the country.
Duane Hoffmann /

When you have an old car to sell, or plans to hold a fundraiser for a local kid who’s sick, you probably send an e-mail to coworkers instead of posting a notice on a company bulletin board, or actually walking over to a colleague in a nearby cube or office.

Why? It’s easy.

E-mail has also made it quite easy for unions to send messages about upcoming meetings or strikes to their members, or to employees whom they are trying to organize.

What if e-mail were banned for all such purposes?

Unfortunately, it’s not a what-if.

Right before Christmas, at a time when most of us were knee deep in the holiday spirit, the National Labor Relations Board made a decision that could impact employee use of e-mail across the country. The board ruled that employers could prohibit the use of company e-mail when it came to union organizing. And legal experts say if a company does decide to do that, they must also restrict other types of e-mail solicitations, or risk running afoul of the law.

While use of company e-mail for personal reasons is already a no no at many companies, most supervisors are loathe to go through every single employee e-mail interaction if the worker is doing his or her job well.

The NLRB ruling, however, could turn up the volume on employee e-mail monitoring given that employers now have the added benefit of weeding out any union activity, labor experts say.

The decision clearly undercuts organizing efforts among unions who have come to rely on e-mail as a quick way to get information to the rank and file. But it also could have some unintended results for workers who have also come to rely on email as a way to keep connected to other employees socially and to their communities outside of the workplace, says Gary Chaison, management professor at the Clark University’s Graduate School of Management.

“E-mail is cheap and efficient. Everybody’s doing it,” he adds.

Labor advocates are up in arms over the ruling, claiming this is yet another anti-union decision by a board — made up of three Republicans and two Democrats — that has made many decisions along party lines. (The President with U.S. Senate consent appoints the five members of the board.)

“The Bush labor board has consistently demonstrated hostility toward workers who want to unite for a voice in the workplace, so this latest brand of discrimination unfortunately comes as no surprise,” Andy Stern, president, Service Employees International Union. 

“We need a labor board that truly has an interest in the needs of working people, not one eager to assist those corporate interests bent on trying to intimidate or censor workers who want to form a union to improve their jobs and the services they provide,” he adds. “This ruling is another sad example of how the deck is stacked against workers in America.”

But some management lawyers see the board’s ruling as long overdue. “If an employer pays for and operates a communications systems it has the right to restrict the content of communication,” explains Jon Meer, an attorney who chairs the Los Angeles section of the DLA Piper's labor and employment practice.

Most large unions, he adds, have their own Web sites where employees can go and get information off of the Internet. “They don’t need to use an employer’s e-mail system.”

The actual NLRB ruling centers on a case involving a newspaper in Oregon, where an employee, who was also the union president, sent out e-mails about union activity and was then reprimanded by her managers because the e-mail supposedly violated the company’s policies.

In the case, the board found that the employer did not violate the law “by maintaining a policy that prohibited employees from using the employer’s e-mail system for any ‘non-job-related solicitations.’”

The NLRB’s purpose is to protect workers against unfair labor practices involving employee rights to organize or not to organize, so the agency is supposed to be the watchdog group that keeps an eye on companies trying to take away such rights. That’s why the case ended up at the agency’s door because its members had to decide if restricting such solicitations was running roughshod over workers’ abilities to organize and bargain collectively with employers for fair wages and working conditions.

Some legal experts don’t think the ruling will be that far reaching.

The problem is a practical one, says Jules Crystal, labor law attorney in Chicago for Bryan Cave LLP. “What employer really wants to put all those kinds of restrictions on its employees? I just don’t see why you would want to come off as Attila the Hun to your employees. I don’t want to know what my employees are accessing or e-mailing as long as they’re doing the work.”

There’s also a chance this recent ruling, among many other NLRB decisions this year that have been deemed “anti-union”, may be reassessed sooner than later if a new party moves into the Oval Office.

“The trend will continue until the Bush Administration is over and unless a Democrat wins the White House,” says Jane Lauer Barker, a labor attorney with Pitta & Dreier LLP.

As for the e-mail ruling, Barker believes there is a lot of gray area in determining how things will play out in the workplace. While it mainly addresses “solicitations”, she explains, what’s to keep an employer from interpreting the decision as now having card blanche to prohibit all union-employee communications.

If an employee at a plant or office injures themselves and e-mails a union representative who then e-mails all the workers at the company to be careful of a particular device or office machine, could that be restricted under the recent ruling?

“It’s really not clear how far the board’s decision goes,” Barker maintains.

Despite the unknowns and the potential restrictions, with the nature of electronic communications today — including the widespread use of cell phones and the explosion of the Web — other tools, may fill the company e-mail void.

“Working people are incredibly resilient,” says the SEIU’s Stern, “and whether it’s through social networking sites, new technologies or old tried-and-true organizing, we will continue to find ways to support working people in their efforts to unite to improve their lives.”