Cases & Deals

HR Policy Association wins significant victory in NLRB case of employer's authority to control company email systems

Clients HR Policy Association

Jones Day helped HR Policy Association win a significant victory before the National Labor Relations Board regarding employers' authority to control company email systems.

The case involved the publisher of the Oregon newspaper The Register-Guard and its company email system. Pursuant to a company policy that prohibited using email for non-job-related solicitations, an employee who sent union-related email solicitations to Register-Guard employees at their company email accounts was issued written warnings. Asserting claims under the National Labor Relations Act, the union challenged the company's authority to penalize such use of company email.

In a 3-2 decision, the National Labor Relations Board announced two significant holdings for employers. First, the Board held that because employer-provided email systems are employer property, employers have a "basic property right" to regulate the use of email by employees. Thus, employers may adopt evenhanded email-use restrictions like The Register-Guard's communications policy. Second, although federal law prohibits employers from discriminating against certain union-related solicitations, employers may allow some personal use of employer email systems without opening the door to union-related email. The Register-Guard had tolerated some personal use of company email, but the Board found "no evidence that the [employer] permitted employees to use email to solicit other employees to support any group or organization." Absent such evidence of "the unequal treatment of equal" forms of communication, the Board concluded that The Register-Guard's imposition of discipline for union-related email solicitations did not amount to discrimination in violation of federal labor law. The Board overruled several of its prior precedents to the extent they were inconsistent with its analysis of discrimination in this case.

Jones Day filed an amicus brief and presented oral argument before the Board on behalf of the HR Policy Association, an organization of chief human resource officers of major private-sector employers.

Guard Publishing Co., 351 N.L.R.B. No. 70 (Dec. 16, 2007)