Employers' Right to Limit Employees' E-Mail Upheld

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.

The difficulty with this approach is that electronic communication is neither 'written' in the sense of being printed on paper, nor 'oral' in the sense of posing minimal disruption to employee's work duties. Moreover, an employee's computer screen might reasonably be regarded as either a work area or a non-work area. This led to confusion among employers about how e-mail and other electronic communications might be lawfully regulated. Moreover, since many employers permit employees to use company e-mail systems for at least some personal communication, the question arises whether prohibiting employees' use of e-mail for union-related purposes would be discriminatory under the National Labor Relations Act.