What is conficential?

The American Bar Association has issued a formal opinion on an attorney's responsibility to advise clients concerning "the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access." Attorneys representing employees should advise their client not to use their employer's computers, devices or e-mail to send confidential communications.

AFL-CIO and social media

The AFL-CIO blog recently embraced the use of social media as an organizing tool. One of an employer's big advantages in the effort to maintain union free status is the difficulty labor has in contacting employees. Employers assert property rights to prevent FtF access, access to e-mail or any other use of company property to communicate a union message. Under current law, employers have many ways to prevent workplace communications concerning unionization, as long as they do not discriminate on the basis of content. While unions are free to approach employees at home, or other times when they are away from the workplace, this is both intrusive and inefficient. Thats where the intertubes, social media and blogging comes in.
Web sites, blogs and social media have the potential to level the playing fields for labor and its organizers. Its  cheap, easy to master and effective communication. Instead of pounding the pavement at shift change or home visitations, the organizing committee can build support by inviting friends to a Facebook page which subsequently can be an effective tool for communications necessary to maintain support during a campaign.
Register-Guard exposes the difficulty for an employer trying to restrict workplace e-mail communication. Employers of employees who have access to e-mail at work should make promulgation of an effective e-mail and computer use policies a top priority. Just like having appropriate no access and no distribution rules prior to organizing activity, proper restrictions on e-mail and social media use through employer property (computer or smart phone) must be in place ahead of the activity.
Improper monitoring of electronic data can run afoul of not only the surveillance restrictions of the NLRA, but also federal data transmission and data storage laws designed to ensure privacy. Improper monitoring of social media raises similar concerns.
I think it is very likely the NLRB will revisit the question of whether employee use of e-mail is a presumptive Section 7 right as Member Liebman suggested in her dissent in Register-Guard.

Register-Guard 2007 NLRB e-mail decision reversed by D.C. Circuit

Updated September 14, 2009: One of the "Bush" Board's most criticized decisions is Register-Guard. A three member majority held employees have no Section 7 right to use an employer's e-mail system. The majority also found that an employer's prohibition against e-mails containing union solicitations could be enforced despite the employer permitting employees to send non-job-related e-mails. This case is both an excellent teaching tool for analyzing accessibility/employer's property rights as well as a road map for immediate employer action. More on both after the jump

Teaching Point: The case encourages analysis of the tension between an employer's property right and Section 7. After discussing Lechmere and the holding that non-employee organizers have no Section 7 rights, and a very high burden to attain access to an employer's property, Register Guard is a wonderful case to introduce Republic Aviation and its directive that employees must be permitted the opportunity to engage in section 7 activities during non-working time on employer's property. Member Liebman's dissent argues forcefully e-mail is modern communication governed by Republic Aviation, not a use of employer's property. Further she argues the employer invited the employees to use its property and permitted personal and non-job related postings. In contrast, in class, I discuss the cases which have denied employees use of employers' bulletin boards, televisions, copy machines, etc. This aspect of the Board's decision was not appealed.
The case also adopts a very narrow view of discrimination requiring the "unequal treatment of equals," to support a finding of a violation. This facilitates a discussion of the breadth of Section 7, and the development of the narrow discrimination standard in the Title VII context. The facts of the three e-mails in issue focuses attention on the narrow discrimination analysis. Discipline for two e-mails containing solicitations was held not to violate the act, but discipline for a third, which did not contain a solicitation to act, was found to violate the act. The Court of Appeals disagreed. It noted the only discipline ever meted out was for union related e-mails, and further that the warnings issued themselves made it clear the section 7 protected content was the reason for the discipline.
Employers Point: Many employers are rightly concerned about EFCA and changes it may mandate. EFCA faces a contentious opposition in Congress and its passage is not imminent. At this point no one can precisely predict its ultimate provisions. There are a number of things employers should do, but buying into a comprehensive EFCA response at this point is premature, because we simply do not know what the statute will command if and when it is passed. The Circuit Court's rejection of the narrow standard of discrimination set out by the Board Majority underscores one area in need of immediate review-  an employer's policies barring solicitation. Also, with considerable more certainty we can predict the outcome of the confirmation of the three pending nominations to the NLRB. The Board will have a strong pro-labor majority. Employers should begin immediate preparation for complying with no solicitation issues under a revised standard which may include mandated access to e-mail. Employers response must consider not only the NLRA, but laws affecting the transmission and storage of electronic data. We cannot be sure whether Member Liebman's view that employees should have presumptive access to employer's e-mail system will prevail, but it is virtually certain the Board Majority's narrow view of what constitutes discriminatory enforcement will be reversed as it has already been rejected by the D.C. Circuit.