Be Consistent In Enforcing Those E-Mail Policies

E-mail policies have been a topic of intense scrutiny by the National Labor Relations Board. Although employers are permitted to implement policies that prohibit non-business use, such policies must be enforced consistently, as the NLRB reiterated in a recent case applicable to unionized and non-unionized employers alike.

In T-Mobile USA, Inc., the employer had policies prohibiting the use of facility-wide email distribution lists. A customer service representative (CSR) emailed all the other CSRs to urge them to join the union, to contact her outside of working hours with any questions, and to attend a union event the next night. The company then notified employees, for the first time, that they were not permitted to send mass communications for any non-business purpose, among other things. The employee was also told that she could not send union-related emails to employees’ work addresses, and her email violated the company’s email policy.

The NLRB found, however, that the employer violated the employee’s rights under Section 8 of the National Labor Relations Act to engage in concerted activity for employees’ mutual aid or protection, as it had not enforced the email policy consistently. Rather, it had allowed other nonsupervisory employees to send or reply to facility-wide personal emails, and had also sent its own mass, non-business-related emails. The NLRB further found that the employer had violated the Act by issuing its mass communication rule in response to the employee’s protected activity of sending the initial email about the union.

The lesson for employers is to be careful and consistent in enforcing email and other communications policies – particularly given the pro-unionization bent of the current Board.