I got a written warning for using my employer's email system during lunch 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 for my employer to discipline me for this activity?
No, your employer cannot prohibit you from using company email to send union-related messages. In a relatively recent decision, the National Labor Relations Board (NLRB)—the federal agency that enforces the National Labor Relations Act—held that employers cannot prohibit employees from using company email for union organizing activities and other NLRA-protected activity during nonworking hours. (Purple Communications, Inc., 361 NLRB No. 126 (N.L.R.B. Dec. 11, 2014).)
As a result of this ruling, employees must be allowed to use company email for “protected concerted activity” under the NLRA on their own time. Protected concerted activity includes not only union-related messages in unionized workplaces, but also emails between nonunion employees in an effort to improve the terms and conditions of their employment (for example, emails where employees discuss their dissatisfaction with their wages or concerns about workplace safety).
Employers can, however, restrict this type of activity to nonwork hours—such as meal periods, rest breaks, and the time before and after their shifts. This is consistent with the NLRA rules that allow employees to talk about union matters during nonwork hours in nonwork areas (such as a locker room or lunch room).
Employers can continue to monitor workplace emails for legitimate business reasons. However, they cannot target or single out union-related activity (or other protected concerted activity) for monitoring or discipline. (To learn more, see our article explaining the rules on workplace email monitoring.)