Limiting Non-business E-mail: Define Precisely and Enforce Consistently

Last month, my post Court Curbs Inspection of Employee Text Messages discussed an employer that was held to have unreasonably searched employee text messages because, despite a policy stating that employer-supplied technology must be used only for the employer’s business activities, that policy was undercut when it was only selectively enforced.

Continuing this theme, in a more recent case, Guard Publishing v. NLRB, the D.C. Circuit held that selective enforcement of a policy limiting employee e-mails constituted a violation of federal labor law.

In my opinion, Guard Publishing actually made two mistakes. First, the e-mail policy prohibited “non-job-related solicitations” (emphasis added) but did not prohibit other other non-job-related communications. So the employer gave itself the ability to limit only a fraction of all possible non-business communications.

Second – and this is what decided the case – the only solicitations that the employer actually prohibited were union solicitations!

This case suggests two recommendations (consistent with the recommendations offered last month) if you want to implement a policy to limit employees’ non-business use of e-mail on the job:

1. Define the limited communications broadly (for example, “all non-business e-mail”).
2. Enforce the policy consistently.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.