The Impact of Employer E-Mail Policies on Employee Rights to Engage in Concerted Activities Protected by the National Labor Relations Act

This article addresses the interrelationship of employee rights to engage in "concerted activities" under Section 7 of the National Labor Relations Act (NLRA) and employer policies on electronic mail (e-mail) use. Should traditional labor law rules regarding solicitation and distribution be applied to e-mail communication? Does a "business-use-only" e-mail policy avoid legal problems? Is such a policy practical in light of the pervasive use of e-mail for general communication?

If employers permit selective personal use of the e-mail system, but prohibit discussions related to a union, or to wages, hours and working conditions, such discrimination is legally problematic. Also, employer monitoring of employee e-mail is a form of surveillance that may be prohibited during a union organizational campaign. This article analyzes existing case law interpreting similar issues under the NLRA in light of new issues arising with e-mail in the workplace. The article concludes with recommendations for appropriate resolution of the competing interests of employers, unions, and employees.