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The Corporate CounselorLJN NewslettersNewsSections

Employers' Right to Limit Employees' E-Mail Upheld

By Matthew Damon
June 26, 2008

Since the introduction of electronic communications into the workplace, employers of both union and non-union workforces have sought to establish guidelines for employee use of company communications systems. This interest in establishing lawful limits on employee use has grown as the variety of available electronic communications has proliferated beyond e-mail to include Internet usage, blogs, podcasts, social networks and discussion boards. Many employers maintain policies governing employee use of those resources as well as voicemail, telephones, teleconferencing and other communications systems. These policies arise from concerns involving not only system security, but prevention of sexual harassment, eliminating non-productive use of work time and equipment, protection of confidential information and minimizing potential liability to third parties. Many employers have also been concerned about employee use of company-owned communications systems to engage in union organizing or advocacy, and have consequently sought to limit the use of company-owned resources like e-mail systems for those purposes.

In the cases considered by the National Labor Relations Board (NLRB), its General Counsel or Administrative Law Judges, the Board had treated employer restrictions on employee e-mail usage much as it treats employer limits on workplace distribution of union literature and solicitation of co-workers. These rules are familiar to most employers: prohibition of 'distribution,' i.e., dissemination of written materials, is permitted unless the employee is in a non-work area and on non-work time, while 'solicitation,' defined as purely oral encouragement, may be prohibited only during work time. The rationale for this distinction is that work areas, at least in the traditional workplace, might become cluttered or disrupted by distribution of literature, so employers have a greater interest in limiting that sort of communication.

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