A company that allows employees to use email for personal reasons cannot prohibit union-related messages on its system. The U.S. Court of Appeals for the Fourth Circuit ruled last week that Media General, owner of the Richmond Times Dispatch newspaper, could not enforce its electronic mail policy to prohibit union-related messages.
The case was appealed from the National Labor Relations Board, which had determined that Media General “violated sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (5), by disparately enforcing a company e-mail policy.”
In considering the appeal, the Court noted that while Media General had an official e-mail policy that “restricted use of the company e-mail system to matters related to company business,” that policy had not been consistently enforced. Indeed, only two employees had been disciplined under the policy, and that was for accessing pornography. The court noted that Media General’s email system “contains numerous examples of messages unrelated to the work of the newspaper. The e-mail system was frequently used by both hourly employees and managers to convey news about the employees’ personal lives, to arrange social events, and to inform employees about charities.” No big surprise here; show me a corporate email system, and I'll show you personal, social and charitable messages.
Importantly, however, the Court concluded that preventing the union from using the email system for union-related business, while permitting all these other kinds of messages, was an unfair labor practice prohibited by the NLRA. The result: now the existing union can use the Company's system to conduct business and communicate with employees. The implication: for non-union employers, union organizers could use company email to persuade employees to elect a union. All on the Company's dime. Nice.
The lesson: employers must exercise great care in both 1) crafting and 2) enforcing email policies. As shown above, an unenforced policy, or one that is only sporadically enforced, can be worse than no policy at all. Policies need to be worded both carefully and reasonably, so that employers may enforce them to prohibit not all non-business messages (which almost nobody enforces), but so that employers can minimize disruption in the workplace, and can reduce email traffic that may negatively impact productivity in the workplace.