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.
For information on email policies at work, see Nolo's article Email Security Policy: Why You Need One for Your Employees.