What impact does the National Labor Relations Act have on e-mail and other HR policies?

Employers should be aware that common personnel policies, and the way they are enforced, could be in violation of the National Labor Relations Act (NLRA), according to the law firm of Pepper Hamilton LLP.

Some federal courts have held that seemingly harmless personnel policies may in fact violate the NLRA, regardless of whether or not the policies are implemented at a unionized workplace, according to Michael J. Canavan, an attorney with Pepper Hamilton. As long as these policies can be reasonably construed to prohibit employees from engaging in activity protected by the NLRA, they will come under scrutiny from the courts, he said.

Canavan offers employers the following tips for avoiding NLRA violations:

• Adopt an e-mail policy and enforce it strictly.The policy pertaining to employees using the company e-mail system for personal matters should be enforced strictly and even-handedly, said Canavan. (Note the NLRB's Register Guard decision, which allowed an employer to maintain a policy prohibiting employees from using e-mail to send non-job-related solicitations-including union communications-and relaxed the standard for determining whether a policy or practice is applied discriminatorily under the NLRA (see ¶63,059 ).

• Avoid overly broad restrictions on communication between employees.Employment policies cannot require employees to keep confidential their wages or prohibit them from discussing other terms and conditions of their employment, said Canavan.

• Avoid blanket prohibitions of solicitation and distribution of literature at the worksite.Although such activities may, at times, interfere with business operations, a complete prohibition will violate an employee's right to engage in 'concerted activities' related to organizing, according to Canavan. Restrictions on solicitation and distribution should be tailored to allow employees to engage in these activities in such a way that will not disrupt the business.

• Include a provision that specifically exempts conduct protected by the NLRA.Otherwise invalid or questionable policies may be cured by a provision that makes clear all other policies must be read so as not to prohibit activities protected under the NLRA, Canavan said.

Source:Traditional Office Policies May Violate the National Labor Relations Act, released October 25, 2007; Pepper Hamilton LLP, 3000 Two Logan Square, Eighteenth and Arch Streets, Philadelphia, PA 19103; telephone: 215-981-4000.