Unintended Consequences Of Allowing Employees To Use Business Email Systems For Personal Matters

The workplace has become more automated with many employers finding it convenient to provide employees access to internal email and internet capabilities. However, the extent to which access is allowed for non-business related matters may affect an employer in ways it does not intend. In particular, your policy may violate the National Labor Relations Act (NLRA).

Recently, the National Labor Relations Board (NLRB) reviewed two policies of a company. One was a general policy that prohibited any use of the company’s computers other than for business purposes. As this was a general restriction, the NLRB found that that this did not violate a union’s right to communicate with its members, or any employee’s right to communicate regarding union activities or solicitation. Essentially, so long as the restriction applied to all and was evenly enforced, a union’s or individual’s rights under the NLRA were not being violated.

However, once the door is opened for other activities an employer may not restrict union related or protected speech or conduct. So, when the employer determined that too much time was being spent by union members using the email system for union business it passed a policy specifically restricting union related emails. This was a facially invalid policy directed only to union activities and violated the NLRA.

What is an employer to learn from these announcements? First, an employer may restrict use of its equipment to only business related matters. While easy in stating, it is difficult in application. Although it would be fairly simple to stop an employee from sending or receiving emails to persons outside of the office, it is not so easy to prevent employees from sending each other personal emails within the office. Consequently, if this is the policy, it does need to be policed and enforced because once personal emails are allowed for some things, as the recent NLRB decision points out, you may not focus on union related emails later.

So, the second thing to glean from the decision is that without restrictions your business computer system may become the equivalent of a break room where employees are free to chat about any number of things. Recall that if employees are free to talk in the break room about baseball they are generally free to talk about union matters as well, including solicitation of others. If employees are likewise able to use your email or other electronic media system to conduct personal business or send and receive personal emails or engage in personal non-business related discussions, the door may have been opened to allow internal union discussions or other protected activities under the NLRA.

Finally, actions taken in response to use of your system for union-type activities such as employee to employee solicitation will likely be viewed as a direct violation of the NLRA. It is one thing to limit use for a neutral reason such as controlling the system’s storage or preventing wasted time, it is another thing to limit use because of specific union related content.

As a result, employers must carefully weigh the risks of allowing employees to use their computer systems for personal matters with the possible result that its own systems may potentially be used for protected union and concerted activity.

For more information on this topic, please email Keith Sieczkowski or call him at (361) 886-3800.