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NLRB Is Rethinking Whether Employers Can Prohibit Non-Work Email

Should employers be able to bar employees from non-work related uses of email and other electronic communication systems?READ MORE »

Rhoads & Sinon LLP

A (Temporary) Victory For Employers: Employees Cannot Use Company Email for Union Organizing

Robert Tribeck
The NLRB recently resolved a long-standing issue regarding whether an employer could prohibit its employees from utilizing the employer’s email for reasons related to union organization. The outcome: clear victory for employers. At least for now.
In The Guard Publishing Company, 351 NLRB No. 70 (December 16, 2007), the Board was faced with consideration of an employer’s communications policy which provided as follows:



I got a written warning for using my employer's email system to send out a message to union members about an upcoming event. (A group of us are going to represent the union at an Earth Day festival, and one of the activities is going to be a rally against corporate practices that harm the environment.) My manager told me that I was being disciplined for using the company's email system for personal reasons or to solicit employees. But everyone sends personal email and email relating to The United Way, the Girl Scout cookie drive, and countless other causes, and the company just looks the other way. As far as I know, I'm the only employee who's been disciplined for breaking this rule; is it legal to selectively enforce company policies this way? 


Enforcing a policy selectively such that only union-related activities are punished violates the National Labor Relations Act(NLRA). An employer may not single out communications relating to a union for discipline, whether they involve messages on t-shirts and other clothing expressing support for the union, social media posts about union issues, or email regarding union events. Selective enforcement against only union members or union discussions violates an employee's right to choose whether or not to support a union. Your shop steward or union rep will definitely be interested in your employer's decision to selective enforce its policy against your union-related message.