Nolo's Employment Law Blog

Yesterday, the Supreme Court announced that it has agreed to decide an issue that has had the Courts of Appeals tied up in knots: whether decisions issued by only two members of the National Labor Relations Board (which has five members at full strength) are valid. (The case the Court will decide is called New Process Steel v. National Labor Relations Board; you can find the petition for certiorari -- the brief lawyers must file arguing that the Supreme Court should hear the case -- here.)

The National Labor Relations Board, or NLRB, has had only two members since the end of 2007. President Obama has nominated three new members, who are awaiting a floor vote in the Senate. Meanwhile, the two members of the NLRB have issued hundreds of decisions in representation and unfair labor practices cases. And, now that the Supreme Court has agreed to decide whether two members may act for the NLRB, the outcome of all of those cases may once again be in doubt.

The case turns on the NLRB's authority to delegate its powers to a smaller group, and how large that smaller group must be. The National Labor Relations Act, which created the NLRB, allows the full Board to delegate any of its powers to a group of at least three members (a quorum). The Act also says that two members may constitute a quorum on issues that the full Board delegates to a three-member group. For those of us who skipped the student council and model U.N. meetings, all this talk of delegations and quorums can numb the brain. But the issue boils down to this: Can the NLRB act with only two members or does it need at least three? Or, as the petition for certiorari put it more dramatically, "Does the NLRB exist?"  

The federal Courts of Appeal have split on the issue. In fact, the Seventh Circuit Court of Appeals and the D.C. Circuit issued decisions on the same day, reaching opposite conclusions. The NLRB should be back at full strength by the end of this year, but the Supreme Court's decision will determine whether almost two years worth of NLRB cases should be upheld or thrown out. There's a lot at stake, in other words. 

It looks like the military family leave provisions of the FMLA are about to be amended. The National Defense Authorization Act of 2010, which is currently awaiting the President's signature, includes the Supporting Military Families Act. (You can find it at Section 565 of this massive piece of legislation, about 120 pages in.)

This provision would make four key amendments to the FMLA:

1. Qualifying exigency leave would be available to family members of those in the regular Armed Forces as well as those in the National Guard or Reserves. This type of leave allows family members to take some time off to handle important matters (such as setting up temporary childcare, drafting a will, or making financial arrangements) relating to a child, spouse, or parent's impending call to active duty military service. If this bill passes, family members of career military personnel who are deployed would also have the right to take qualifying exigency leave.
2. Qualifying exigency leave would be available to family members of all those deployed to a foreign country. In other words, the bill removes the requirement that a member of the National Guard or Reserves be serving "in support of a contingency operation." This would expand the number of employees eligible for this type of leave.
3. Family members would be eligible to take caregiver leave to care for a veteran suffering a service-related serious illness or injury, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of requiring care. This new provision is intended to allow leave to care for a family member with an injury that might not manifest right away, such as post-traumatic stress disorder. Currently, the FMLA allows military caregiver leave only for current service members.
4. Military caregiver leave would be available when a family member has a preexisting serious illness or injury that is aggravated by active duty in the military. The law currently allows caregiver leave only for serious illnesses or injuries incurred while on active duty. It seems possible (to me) that this new provision could be interpreted to allow multiple 26-week periods of leave for the same injury -- first, when the service member is initially injured, and later if the service member returns to active duty and aggravates the injury. This scenario is something the current regulations explicitly disallow.

As the end of the year approaches, Congress and President Obama are considering whether to extend several important economic benefits to help ease the effects of the recession. For instance, the tax credit for first-time homebuyers, an $8,000 credit that one economist says will have resulted in 400,000 home sales during its tenure, is set to expire on December 1, 2009. Unemployment benefits are another topic of discussion: The House of Representatives has already passed a bill that would provide an additional 13 weeks of unemployment benefits in states with unemployment rates of at least 8.5%. The Senate is considering a different approach, which would extend benefits for 14 weeks in every state, and by an additional six weeks in states with higher unemployment.

And what of the COBRA subsidy, by which the government picks up almost two-thirds of the tab for continuing health insurance for workers who have lost their jobs involuntarily? (Learn more about the subsidy in this article.) The subsidy, which lasts for nine months, applies only to employees who are fired or laid off by the end of this year. According to Workforce Management, the percentage of eligible employees who actually enroll in COBRA has doubled since the subsidy went effect. The White House has said that it is considering  seeking an extension of the subsidy. So far, however, Congress doesn't appear to have taken up any legislation that would effect this change. If Congress doesn't act, workers who are fired or laid off after the first of the year will once again have to pay the full cost of continuing health insurance -- and, given the statistics above, many are likely to decide that this is a luxury they can't afford.  

Layoffs have been much in the news for more than a year, and with good reason: Unemployment has reached 9.8%, and is expected to continue growing in the months to come. But lost jobs aren't the only employment story of the economic downturn. Many struggling companies are trying to get more for less -- more work out of their employees for less money, that is. When companies combine layoffs with pay cuts and hour cuts, the inescapable result is that remaining employees have to work harder for less pay.

As statistics show: The Bureau of Labor Statistics (BLS) has released its latest figures on what it calls "labor productivity," a measure of employee output per hour as compared to the cost of that labor. Here's the good news: Employee productivity is up by 6.6% in the second quarter of this year. (Way to go, people!) The bad news is that we realized this improvement not by boosting overall productivity -- which actually declined by 1.5% -- but by working faster. Work hours declined by 7.6% in the same period. (This decline encompasses hours lost both to reduced work schedules and to layoffs.) In fact, the New York Times reported today that pay cuts -- which are often tied to reduced hours -- are more common now than at any time since the Depression.

Even those at the bottom of the economic ladder are facing declining wages: Colorado has said that it will have to cut the minimum wage from $7.28 an hour to $7.24 an hour as a result of deflation. Colorado is one of ten states in which the minimum wage is tied to inflation. This type of legislation is typically intended to protect low wage workers by making sure that the minimum wage keeps up with the cost of living. But when the cost of living drops, these laws requires the minimum wage to drop along with it.   

The Supreme Court began its 2009-2010 term yesterday. As a number of news reports have pointed out, there are a lot of business cases on the docket this time around, including a challenge to the accounting review board created by Sarbanes-Oxley. There are also a few cases with labor or employment implications on the docket, including a couple of arbitration cases (Union Pacific Railroad Co. and Stolt-Nielsen S.A.) and an ERISA dispute (Conkright).  

And just last week, the Court agreed to hear Lewis v. City of Chicago, a disparate impact case involving racial disparities in the results of a written test given to firefighter applicants. (Sound familiar?) This time around, Black applicants are suing the city of Chicago for using the results of a written test -- which they allege had a disparate impact based on race -- to decide whom to hire.

The issue in Lewis is when the plaintiff-applicants should have filed their charges of discrimination with the EEOC (which is a prerequisite to filing a lawsuit; plaintiffs who don't file a charge with the EEOC or a similar state agency may not sue under Title VII). The Seventh Circuit Court of Appeals found that the applicants filed their charges too late and entered judgment for the city. 

Plaintiffs have 300 days after their claim "accrues" to file a charge of discrimination with the EEOC. In Lewis, the plaintiffs learned their test results (which divided applicants into the categories of "well qualified," "qualified," or "not qualified") and were told that they were unlikely to be hired unless they fell into the "well qualified" category. At about the same time, the city announced that it was likely to hire only a third of those who fell into the well qualified category in the next three years. 

The plaintiffs filed their charge more than 300 days after they received their test scores and learned how the city planned to use them, but within 300 days after the city actually started hiring based on those scores. The Seventh Circuit found that the plaintiffs' claims accrued when they learned their test scores, because that event determined whether or not they would be hired. Other Circuits have reached a different conclusion, finding that plaintiffs don't have to file charges within 300 days after a policy is announced, but only within 300 days after that policy is relied upon to make an employment decision. Presumably, the Supreme Court agreed to hear the case in order to clear up the issue.   

That was one of my favorite bumper stickers a few years ago -- and it's even more appropriate today, as more and more employers, states, and now even the federal government are regulating what drivers may do with their cell phones. Just last week, President Obama signed an executive order prohibiting federal employees from texting while driving whenever they are working, whether they are using government-issued phones and cars or not.

State legislators, sometimes in response to well-publicized and horrific crashes, have banned texting in 18 states; it's also banned in the District of Columbia. Although no state currently bans all drivers from using a cell phone, six states require drivers to use hands-free devices if they want to talk on the phone, and almost half of the states ban all cell phone use by new drivers. (You can see state-by-state charts on these issues at the Governors Highway Safety Association website.)

Studies have consistently shown that driving while distracted is very dangerous. An interesting research project by the National Highway Transportation Association and the Virginia Tech Transportation Institute studied the behavior of actual drivers by putting video and sensor equipment in 100 cars for one year. And it was a very eventful year indeed: The drivers put more than two million miles on their cars, had 82 crashes, 761 near-crashes, and more than 8,000 "critical incidents," in which the driver either got to close to something or someone (like a pedestrian or parked car) or had to swerve or brake to avoid a crash. Among other things, the study revealed that:

• Dialing is dangerous, but . . . Although dialing a cell phone is significantly more dangerous than simply talking or listening on the phone, the number of accidents and near-accidents attributable to each activity were about the same because drivers spend so much more time talking on the phone than dialing it.
• Bugs in the car cause a lot of trouble. Certain activities that we all know (or might guess) are dangerous, such as reading, putting on makeup, and dialing a cell phone, increase the risk of an accident by a factor of three. Having an insect in the car increases the risk by a factor of seven. And don't try to swat it: Reaching for a moving object in the car increases a driver's risk of having an accident by a factor of nine.
• Experience counts. Drivers with more years of experience had far fewer crashes and near-crashes than less experienced drivers.
• Better drivers just seem nicer. Better drivers -- those with fewer crashes and near-crashes -- scored higher on tests that measure extroversion, openness to experience, agreeableness, and conscientiousness.
• Some people are just really bad drivers. A relatively small number of drivers caused most of the problems. 27 of the drivers in the test were responsible for almost 75% of the crashes and near-crashes. One of them had 15 incidents in one year.

Given the facts on distracted driving, the increasing number of governments that ban texting and hand-held devices, and the potential for liability, many employers now prohibit employees from texting or using cell phones while driving, or require employees to use hands-free equipment. If your company wants to do the same, you can find sample policy language on these issues in my book, Smart Policies for Workplace Technologies.   

Those of us who live in the Bay Area are familiar with Cafe Gratitude, a small chain of raw food restaurants. These restaurants have a particular atmosphere and culture, one that feels very familiar to me as a local child of the 60s and 70s. I think of it as "control-freak hippie," an apparently easy-going presentation with a very strident center. (As in, "Hey people, I think it would be really cool if we could all DO THIS EXACTLY THE WAY I WANT RIGHT NOW!") 

A game created by the founders, called Abounding River, is available to play at the many shared tables, so diners can explore "Being Abundance" and discover a "Spiritual Foundation that opens up to a whole new way of looking at money and resources" (quotes from the Cafe's website). Everything on the menu is called "I am [positive adjective]", such as "I am worthy," "I am present," or "I am dazzling." And that's what you have to call it when you order: If you try to get away with, "I'd like the pesto pizza," you will be gently encouraged to call it by its true name ("you mean, 'I am sensational'?"). And when your pizza arrives, the server smiles, looks you in the eyes, sets it in front of you, and says, "you are so sensational!" The staff is friendly, the atmosphere is warm, and there are rules.  

As the East Bay Express recently reported, the Cafe's philosophy and culture stem from the Landmark Forum (which grew out of est (Erhardt Seminar Training)), a "transformative learning" program whose graduates sometimes recruit others in ways so insistent that it can feel like proselytizing.

As some Cafe employees have discovered: According to the Express article, all employees are "encouraged" to attend the Landmark Forum, a weekend-long introductory course, and all managers are required to go -- and pay for it. Managers hold daily "clearings," "during which employees answer a series of questions before 're-creating' each other in a process aimed at freeing the workers to be present and alive in the moment for the job" (quote from the Express article). 

Would you like a side of "I am litigious" with that? Because there could be some employment law problems here, as the article also points out. First of all, employers that require employees to attend training sessions have to pay for it -- twice. The employer has to pay the cost of the training, and then has to pay employees for the hours they spend doing it. Then there's the potential religious discrimination problem: Whether or not the Landmark Forum or the owners of Cafe Gratitude would describe their philosophies as "religious," the belief in human potential -- that we create our own reality -- may itself conflict with a religious view that a higher power does the creating. And, if an employer fires or disciplines those who don't share the company's official belief system or complain about feeling pressure to adopt it, an experience one employee described in the Express article, a retaliation claim may not be far behind.   

In the ADA Amendments Act, which went into effect at the beginning of this year, Congress told the Equal Employment Opportunities Commission (EEOC) that it had defined the term "substantially limits" too narrowly, in a way that inappropriately restricted the number of people protected by the ADA. Last week, the EEOC responded by issuing proposed regulations that represent a significant departure from the way the ADA has been interpreted by the agency and by courts. Here are a few changes I found interesting: 

List of disabilities. Courts -- and the EEOC -- have tended not to categorize a particular impairment as a disability, instead looking at the particular effect the impairment has had on the particular person in question. In the proposed regs, the EEOC has taken a very different approach: It provides a nonexhaustive list of impairments "that will consistently meet" the definition of disability, including deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments that require use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. The regs still nod to the need for an individualized assessment, but say it can be conducted "quickly and easily" in the case of these impairments.

"Substantially limits" redefined. Like the ADAAA, the proposed regs explicitly disavow the test created by Justice O'Connor in Toyota v. Williams, which held that someone is substantially limited only if he or she is unable to perform activities of central importance to daily life. Instead, the regs state that this term should be construed in favor of broad coverage, and that a substantial limit in one activity is sufficient. The regs also say that factfinders should use their common sense when determining whether someone is substantially limited in a major life activity as compared to the general population; scientific or medical evidence won't necessarily be required.

Working as a major life activity. The proposed regs make it easier for employees to show that they are substantially limited in the major life activity of working. Previously, employees had to show that they were unable to perform a class or broad range of jobs -- and the Supreme Court had expressed doubt as to whether working even counts as a major life activity. In the proposed regs, the EEOC makes clear that working is a major life activity, and that an employee has met this standard if he or she is substantially limited in performing or meeting the qualifications for the job he or she has held or for jobs with similar qualifications or requirements. It doesn't matter that the employee could find work elsewhere, could perform jobs with different requirements, or could perform the job with a reasonable accommodation.

Earlier this month, a report was released on a 2008 survey of low-wage workers in the cities of Chicago, Los Angeles, and New York. The title of the report, "Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America's Cities," kind of gives away the ending. The statistics are truly shocking:

• More than a quarter of those surveyed reported that they had received less than the minimum wage in the previous week, and 60% of those reported being underpaid by more than $1 per hour.
• More than three-quarters(!) of those surveyed reported not being paid for overtime worked in the previous week -- and they averaged 11 hours of weekly overtime.
• Almost a quarter worked off the clock (and weren't paid for it), and nearly two-thirds of those entitled to a meal break didn't receive the full, uninterrupted, work-free break required by law.
• 41% had illegal deductions taken from their paycheck (for breakage or to pay for tools or other items required for work, for example).
• 43% of those who had made a complaint or tried to form a union in the past year faced retaliation. One-fifth reported that they had not complained about a serious workplace problem in the past year, primarily because they feared losing their job.

Secretary of Labor Hilda Solis told the New York Times that the report "shows that we still have a major task before us." She also indicated that she's in the process of hiring 250 more wage and hour investigators.

Despite some signs of an economic rebound in the stock market, housing sales, and other areas, unemployment continues to rise. Earlier this month, the Bureau of Labor Statistics announced that the national unemployment rate has reached 9.7%. The San Francisco Chronicle reported that the jobless rate in California has hit 12.2%, with 2.25 million residents of the Golden State out of work and actively looking for new jobs.

People are starting to refer to our current economic situation as a "mancession," because so many who have lost their jobs are male. Nationally, the BLS reports that the male unemployment rate is 10.1%, while the female unemployment rate is only 7.6%. As a result of this skew, women now make up virtually half of the workforce, for the first time in history.

This morning, the New York Times reported on one effect of these statistics: Women who left the workforce after having children are trying to return to work, often to replace a spouse's lost income or hedge against the possibility of a spouse's layoff down the road. 

The article focuses on women who had the option of staying home with their children, so it's necessarily limited in scope to the upper end of the economic spectrum. A lot of the women profiled were attorneys, for example. And, it's a little bit hard to find too much sympathy for someone who had to return to work in part to offset investment losses "in the healthy six figures." Still, it's one more fundamental change attributable to the recession.

I'm interested in hearing how this gender shift in employment will affect overall pay and benefits. Not every working woman is an attorney pulling down a six-figure salary. In fact, women tend to earn less than men on average (currently thought to be about 80 cents on the dollar), are more likely to work part-time jobs, and are less likely to receive benefits. Will the gender shift -- and the resulting increase in families being supported primarily by women's work -- lead to higher pay and benefits for women? Or will pay and benefits decrease as women increase their participation in the labor force?    

Ted Kennedy, who died last night, was known as "the Lion of the Senate." He was also a true working class hero, or more accurately, a hero of the working class. He was one of my heroes as well.

Every day, those of us who practice, write about, or apply employment laws are dealing with Senator Kennedy's life work. Since he was first elected to the Senate in 1962, Kennedy introduced, sponsored and/or vigorously supported these landmark employment, labor, and civil rights laws (among many others):

• The Civil Rights Act of 1964 (the subject of his first speech to the Senate)
• The Occupational Safety and Health Act (OSHA)
• The Worker Adjustment and Retraining Notification Act (WARN)
• The Americans with Disabilities Act (ADA)
• The Civil Rights Act of 1991
• The Family and Medical Leave Act (FMLA)
• The Health Insurance Portability and Accountability Act (HIPAA)
• The Pension Protection Act
• The Genetic Information Nondiscrimination Act (GINA)
• The Lilly Ledbetter Fair Pay Act
• The COBRA subsidy portion of the American Recovery and Reinvestment Act

In his decades in the Senate, Kennedy was instrumental in increasing the minimum wage, protecting the rights of workers to organize, fighting discrimination, and much more. He was a reliable and fierce advocate of the rights of people of color, women, gay men and lesbians, and people with disabilities. What an unbelievable legacy.  

Did you know that at least four states have passed laws that prohibit mandatory or coerced microchipping, including installing a microchip or radio frequency identification (RFID) tag as a condition of employment? A number of states have legislation addressing the improper use of RFID tags or the information from them (for example, to surreptitiously gather private information). But California, North Dakota, Ohlahoma, and Wisconsin have gone further to ban employers from implanting microchips in their employees as a condition of employment. You can find a list of state RFID laws, with links, here, at the website of the National Conference of State Legislatures.)

California's statute (Cal. Civil Code section 52.7), for example, prohibits requiring, coercing, or compelling anyone to undergo "the subcutaneous implanting of an identification device," including conditioning any private or public benefit on consent to implantation, "including employment, promotion, or other employment benefit, or by any means that causes a reasonable person of ordinary susceptibilities to acquiesce to implantation when he or she otherwise would not." The law imposes penalties of $10,000 per violation, with an additional $1,000 penalty for each day the violation continues; it also creates a right of action, with punitive damages, attorney fees, and litigation costs (including the cost of hiring expert witnesses).

And speaking of high-tech information gathering, one of the fixes currently under consideration for the E-Verify system, the government's online system for authenticating an employee's authorization to work in the United States, involves biometric data. Senator Schumer, Chairman of the Senate Judiciary Committee's Subcommittee on Immigration, Refugees, and Border Security, recently said that E-Verify should include a biometric component -- based on fingerprints, retinal scans, or DNA, for example -- to make sure that the employee is who he or she claims to be. Employment lawyers have raised a number of concerns about the proposal, from privacy violations to concerns about the cost, according to a recent article in the National Law Journal.

Certainly, any employer that requires employees to provide biometric information will have to guard the privacy of that information very carefully. If biometric information is leaked or stolen, the term "identity theft" could take on a whole new meaning -- to include not only identification numbers or bank account information but also the ridges on our fingertips and the unique structure of our faces (or our genes). You can apply for a new Social Security number, but not a new eyeball. And this issue is already on the legislative radar: For example, Illinois recently enacted a law requiring companies that gather biometric data to do so only with written consent, to use reasonable care to store and protect that information (and to refrain from selling it), and to establish a timetable for retaining and destroying the information 

Last month, the Ninth Circuit Court of Appeals decided that a group of employees could pursue claims for unpaid wages against three individual managers of a company that was in bankruptcy. In Boucher v. Shaw, the Court reinstated a complaint brought by several employees against their former managers at the Castaways, a casino and entertainment center in Nevada. The Castaways was still operating and in Chapter 11 bankruptcy when the employees lost their jobs; shortly afterwards, the bankruptcy was converted to a Chapter 7, and the company was liquidated.

The employees claimed that they never received their accrued vacation and holiday pay and that they were paid late (or not at all) for their final weeks of work. The employees' union also sued to recover dues that had been withheld from employee paychecks. Rather than suing the bankrupt company, the employees sued three individuals: the company's CEO (who owned 70% of the business), the person responsible for handling labor and employment  matters at the company (who owned the remaining 30%), and the CFO (a nonowner). All claimed that they couldn't be sued individually -- and, even if they could, that the lawsuit was barred by the automatic stay, which protects those in bankruptcy from creditor efforts to collect their debts.

The Court rejected both of these arguments and allowed the employees' lawsuit to go forward. The Court found that all three of the individuals were "employers" under the Fair Labor Standards Act (FLSA), because all had control over the employment relationship. The Court also found that the automatic stay protected only the Castaways itself, not the individual owners and managers.

Given the number of businesses that are going under, this case is a timely reminder that employee wages must be paid, regardless. If the company itself declares bankruptcy, individual managers can be sued. Even if those managers declare personal bankruptcy, unpaid wages are considered a "priority debt," which means they jump to the head of the repayment line along with unpaid child support and tax debts.  

Last week, the Wall Street Journal reported on a couple of lawsuits filed by hourly employees who claimed that they weren't paid for time they spent responding to phone calls and text messages after work. In both cases, the employees said they were issued cell phones or smart phones by the company, and were expected to respond to calls and messages even after hours.

These cases seem fairly clear cut to me: Assuming the evidence backs up the employees' claims, they're entitled to pay. Under the Fair Labor Standardsa Act (FLSA), hourly employees must be paid for all time they spend working, whether the employer requires it or the employee puts in the hours voluntarily. The employees in these cases were responding to work messages and calls on equipment the company provided to them, presumably at least in part so they could do this type of work offsite and after hours.

If the employees were arguing only that they had to be "on call," the rules are a bit different. If, for example, an employee has to carry a pager or cell phone on the weekend and be prepared to respond if necessary, courts look at a number of factors to determine whether the employee is working or not. But in these cases, employees seek pay for all of the on-call time -- in other words, if the pager is on, the employees argue that the meter should be running. There's no dispute that once an employee on call actually gets a call and has to respond, that employee is working and must be paid. So, even under this line of cases, employees who are answering cell phone calls and responding to text messages are working.

Employers that issue portable communications devices -- like cell phones, BlackBerrys, or laptops -- to hourly employees could get into trouble here. In fact, some commentators recommend not providing this type of equipment to hourly employees, or at least requiring those employees to leave their equipment at work, to make sure that they aren't putting in time for which they aren't being paid (especially these days, when many employers have instituted furloughs or otherwise cut work hours as a cost-saving measure).  

As anyone who listened to even a few minutes of Justice Sotomayor's confirmation hearings knows, the role of the courts in our government of separated powers is not to make the law, but to apply the law. Sounds simple enough (especially when repeated hundreds of times over the course of a week, thank you Senators), but it gets tricky in a hurry when age-old legal principles have to be applied to new developments. This is especially true where technology is concerned: Is it an illegal search if law enforcement uses heat-detecting equipment -- from outside a building -- to uncover an urban pot farm? Do paparazzi at a celebrity wedding unreasonably intrude on the fabulous couple's right to be left alone? Can an employer read text messages sent from one spouse to another during a lunch break?

The courts and the National Labor Relations Board (NLRB) have been wrestling with this problem in defining the appropriate use of email. A couple of years ago, the NLRB issued a controversial decision, In re Register Guard, on employee use of email for union-related messages. This case hinged entirely on how the NLRB categorized email: If email were classified as a conversation, then the rules for union-related communications would apply. The employer would not be allowed to prohibit email relating to union issues. As long as such conversations took place during nonwork hours (for example, during breaks) and didn't cause undue disruptions to work, they would be allowed.

The NLRB didn't view email as a conversation, however: Instead, it applied the rules for use of company property. Under those rules, employees don't have a legal right to use company-owned equipment as they wish. So, the NLRB found, the company was free to restrict employee use of email, as long as it didn't single out union-related messages for punishment. In the Register Guard case, the NLRB found that the company could choose to prohibit all solicitations for outside organizations, including the union, while allowing personal solicitations (like party invitations or notices of tickets or furniture for sale), without violating the law.

Last month, however, this decision was partly overturned. The federal Court of Appeals for the District of Columbia Circuit took a closer look at the case and found that the employer had discriminated against union messages. First off, the Court noted that the NLRB's distinction between solicitations for organizations and personal solicitations was entirely of its own creation: The company's policy prohibited all solicitations, period. And, the Company had not disciplined employees for sending out other solicitations, even though they were equally prohibited by the policy. The Court found that the company enforced its policy selectively only against union messages while allowing a variety of other solicitations to go undisciplined, which is a violation of the National Labor Relations Act.

The D.C. Circuit didn't examine the underlying issue of whether the legal rules applicable to discussions or property should apply to email. But there's a good chance the NLRB itself may take a second look at this determination: The five members of the NLRB are nominated by the President. One of the two sitting members dissented in the Register Guard decision, and President Obama has recently nominated three new members to join her. Given the singular importance of email in today's workplace, it's probably safe to say we haven't yet heard (or typed or texted) the last word on this question.