Employers must ensure that their email policies advise employees of the appropriate use of email.  Likewise, employers must enforce appropriate use policies in a consistent matter.  However, employers do not have unfettered discretion to discipline employees for “inappropriate” email content.  In a recent ruling, the NLRB found that an employer had committed an unfair labor practice when disciplining employees over emails that constituted concerted activity protected by section 7 of the National Labor Relations Act.

The underlying facts date back to April 2007, when NASA advised all of its facilities, including its Jet Propulsion Laboratory (“JPL”) operated by Caltech, that employees would have to undergo background checks or they would be terminated.  In 2007, 28 employees filed suit against NASA and other entities seeking to enjoin the background check procedure.  In January 2011, the court ruled JPL could proceed with the background checks.  JPL notified employees of the court’s ruling and advised them they would need to complete the background checks to obtain the badges required to enter the Pasadena facility.

Following JPL’s email concerning the lawsuit, several employees emailed co-workers about the court’s ruling.  JPL concluded that several of these employees’ emails violated its email policies and issued written warnings.  The written warnings prompted a barrage of subsequent emails from employees objecting to the discipline.  JPL eventually had to send an email requesting that the employees cease hitting “reply all” — because 4600 individuals were receiving emails about disciplining certain employees over email content.  In one email, JPL practically begged: “Out of respect for people’s time, the … management team would like to ask you not to reply to this email address until we can fix the situation.”  Unfortunately, this only prompted more employee responses.  One employee shot back (hitting “reply all”) –  “I for one have found the responses enlightening.”

The employees who received the written warnings filed an unfair labor practice charge with the NLRB.  Caltech was found to have committed unfair labor practices for issuing warnings to employees over emails expressing objections to the mandatory background check process or the court’s ruling.  Caltech appealed the outcome but it was affirmed by an Administrative Law Judge, who noted that the employer had offered no evidence of disciplining employees following other mass emails, involving the sale of Girl Scout cookies, lunch specials at a local restaurant, United Way campaigns, etc.  “[A]n employer may not allow use of its computers for non-work related activities and discriminate against use of the computers for similar Section 7 activities[,]” the ALJ noted.