Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

On Friday afternoon -- conveniently right before a long holiday weekend -- the NLRB dropped a significant decision on an important issue -- whether an employer may set up a policy that, in turn, prohibits employees from using the employer's e-mail system for any "non-job-related solicitations." 

The NLRB answered "yes" in the case of The Guard Publishing Company d/b/a The Register-Guard,  351 NLRB No. 70.

The NLRB issued a lengthy press release discussing the case available here which also addressed some additional, and no less significant, issues:

The employer’s written policy prohibited the use of e-mail for “non-job-related solicitations.” In practice, the employer allowed a number of nonwork-related employee e-mails, but there was no evidence that it permitted e-mails urging support for groups or organizations. ... 

Addressing the maintenance of the policy, the Board majority of Chairman Battista and Members Schaumber and Kirsanow reasoned that under Board precedent, employees have no statutory right to use an employer’s equipment for Section 7 purposes. The majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held that a ban on solicitation during nonworking time was unlawful absent special circumstances, was inapplicable to the use of an employer’s e-mail system, because Republic Aviation involved only face-to-face solicitation, not the use of employer equipment. The majority noted that the use of e-mail “has not changed the pattern of industrial life at the Respondent’s facility to the extent that the forms of workplace communication sanctioned in Republic Aviation have been rendered useless . . . . Consequently, we find no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.” Therefore, the majority concluded, the maintenance of the policy did not violate Section 8(a)(1).

With respect to the alleged discriminatory application of the policy to Prozanski’s e-mails, the majority clarified that “discrimination under the Act means drawing a distinction along Section 7 lines.” The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court’s analysis, “rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.” The majority overruled the Board’s decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.

The case has already been written about by The New York Times, and discussed at length by several blogs over the weekend, including Workplace Prof (which heavily criticizes the decision), Ross Runkel's NLRB Law Memo, Workplace Horizons, Eye on the NLRB, and Pennsylvania Employment Law Blog, so I won't repeat their thorough coverage here (plus I'm technically on "vacation").

But a few thoughts immediately come to mind:

1) Employers will need to consider revising their employment policies on use of electronic mail and intranets immediately to take advantage of the protections this case offers.  After the new year, I'll add more on this as the analysis of the case becomes clear.

2) For the non-labor lawyers or non-union employers, you may be wondering what the fuss is all about. After all, limiting employees' use of the e-mail system to work-related conduct is something that many employers preach. Some even go further with computer-aided limits on sites with personal e-mail accounts, etc.  For these employers, the decision may not seem as ground-breaking, but nevertheless, it allows the employer to create an employment policy that brings consistency and identifible limits. 

3) The case seems to distringuish between "solicitation" and general announcements.  You wonder, however, how this will apply in a practical sense. Will employees try to couch future e-mails as informational -- even when they may just be solicitations dressed up with "informational" language?

Of course, should the makeup of the NLRB change after the next election cycle, all bets are off on whether this case continues to be binding precedent.

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The headlines of the week nationally have certainly surrounded sexual harassment allegations both old and new.  (Note: Due to my firm's involvement in one of those cases, I will not be blogging on it). 

But with the issue back in the forefront, I've been surprised lately in my discussions by how some small to mid-size employers are overlooking the basics in Connecticut.   Do they believe that such conduct just doesn't exist anymore or do they believe that their employees "know it all" about the subject? While claims of sex discrimination filed with the EEOC are down nearly 10 percentt from their peak in 2002, the numbers hardly show such a pronounced drop off that would indicate we've "solved' the problem of sexual harassment in the workplace.  Indeed over 20,000 complaints were still filed with the EEOC as of 2006.

What do I mean by the basics? In Connecticut, its training and posting.  These requirements are found in the administrative regulations , Conn. Regs 46a-54-200 et seq. set up by the CHRO regarding sexual harassment prevention. 

• For posting: All employers who have 3 or more employees must notices that say sexual harassment is illegal and address what the remedies are for such harassment.  The regulations all spell out in specifics that the notices must contain certain elements. Fortunately, the CHRO has also prepared a model poster that complies with the statute and is available for free download. 

Of course, there are other laws as well that require postings to be set up.  Rather than address each law separately, consider using a company that specializes in such posters, like G.Neil. 

• For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.  (This does not mean that employers who have less than 50 should NOT provide the training; instead, it means that they are not required to conduct such training.) 

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.  The format of the training is fairly rigid; according to the regulations:

Such training and education shall be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

Since that time, the CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.   What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should follow this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training. Again, the regulations suggest a course of action that employers would be wise to follow.

Certainly, the workplace has changed in the 16 years since the issues surrounding Supreme Court Justice Clarence Thomas and Professor Anita Hill became so widely publicized. But for employers in Connecticut, sustained vigilance is needed to make sure these changes and the progress that has been made, stick.

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