Human Resources: And You Thought Playing Solitaire At Work Was Bad

Contributed by the attorneys who write Kansas Employment Law Letter Foulston Siefkin LLP
The policy in the back of your employee handbook probably prohibits your employees from using company telephones, computers, fax machines, and copy machines for nonbusiness purposes. If you''re like most employers, you have let little things slide past that policy, such as employees selling Girl Scout cookies via company e-mail or communicating about upcoming parties or events. Your employees may soon be using your computers to organize a union or distribute union literature, and if you try to stop it, you may be the one to get scolded.

How employees can use your system to organize a union
The National Labor Relations Act (NLRA) guarantees employees the right to organize unions without unlawful interference from their employer. Until recently, labor unions organized employees by gaining physical access to the workers and handing out authorization cards. After a certain number of employees signed the cards, the union got an election conducted by the National Labor Relations Board (NLRB).

The dawn of the Internet has quickly and drastically changed communication. As more employees gain access to computer e-mail systems, they''re increasingly using the systems for union activity. Out with the authorization cards and in with the click of a mouse. An employee with Internet access can organize other employees to form a union from the comfort of her own desk chair. Also, an employee can visit a union website and register an interest in organizing, giving the union her e-mail address. The union then sends information to the employee over the Internet, which the employee forwards to co-workers - all while she''s on company e-mail and company time!

As technology continues to develop, the NLRB is constantly expanding the application of its traditional rules into new areas of communication. While the Board has decided very few cases that deal with employee use of e-mail for union organization, you should take note of a case it recently decided so you can learn to avoid some common mistakes.

How you can get into trouble
There''s no statutory right for an employee or union to use your e-mail system for personal or non-business purposes. But once you grant the privilege of occasional personal use of your system during work, you can''t lawfully exclude union activity discussions over e-mail.

A rule that distinguishes between union communications and other personal communications violates the principle of nondiscrimination against union-related activities. That means your policy can''t explicitly prohibit the use of e-mail for union-related communication. Rather, it must be neutral and consistently enforced. You can''t punish employees for using e-mail to distribute union information but permit other employees to use e-mail for personal use, such as inviting co-workers to parties, selling your kids'' candy bars, or congratulating co-workers on the birth of a child.

The NLRB recently decided a case in Oregon that illustrates the hazards of selectively enforcing your e-mail policy. The employee, Suzi Prozanski, worked for the Register-Guard daily newspaper as a copyeditor. At work, she used e-mail for both work and non-work purposes, despite the employer''s communications policy against using e-mail for personal use. Prozanski was the union president, and on three occasions, she sent union- related e-mails to about 50 co-workers at their work e-mail addresses. The first time she sent the e-mails from her computer at work; the other two times she sent them from the union office. The human relations director issued a written warning to Prozanski for sending the e-mails in violation of the employer''s communications policy.

The NLRB found that the Register-Guard violated the NLRA by discriminatorily maintaining and enforcing its communications policy. While the newspaper reprimanded Prozanski for her union-related e-mails, it allowed employees and managers alike to use e-mail for countless other non-business reasons, such as jokes, sporting events, birth announcements, meeting for lunch, and more. The NLRB ordered the Register-Guard not only to stop the way it enforced its rule but also to take affirmative action to comply with the policies of the NLRA. The affirmative action included orders to remove from its files any reference to the unlawful warnings to Prozanski and notify her when it completed that task, post a notice at the office that states the NLRB found the Register-Guard violated federal labor law and tells employees their union-related rights, and file with the regional director a certification that the newspaper complied with those orders.

Your ''to do'' list
With company e-mail systems still a relatively new development for many employers, it''s hard to know exactly what you need to do to comply with all the necessary rules and still maintain a productive workplace. Here are some tips to consider as you face this new challenge.

Create, announce, and enforce a policy:
o Create a clear policy stating that you don''t tolerate non-business use of the company''s e-mail system and that you''ll discipline your employees (up to and including termination) for violating the policy. Tell employees that you have the right to monitor their e-mails.
o Get a signed consent form from all employees showing they read and understood your policy.
o Send internal reminders of the policy to employees on a regular basis.

Limit Internet access. Evaluate your employees'' daily tasks and determine which employees have a realistic need for the Internet to perform those tasks and which will merely be tempted by easy access to surf the Internet.

Be aware of the content on union websites. By learning the topics that unions use to catch the attention of your employees, you can avoid creating the incentive for employee support of a union in the first place. Knowing what''s on union websites will make you more informed of what your employees want out of a union and will highlight the need to enforce your e-mail policy.

Review with your attorney the choices you face and adopt the policies that best fit your needs. You should address these issues early on to prevent legal issues from arising in your company after the cat (or the union) is out of the bag.

Copyright 2002 M. Lee Smith Publishers LLC. This article is an excerpt from KANSAS EMPLOYMENT LAW LETTER. KANSAS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kansas employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.