NLRB telegraphs possible new standard for employee email use

On September 30, 2022, the National Labor Relations Board (NLRB) reversed its earlier stance that an employee who used company email for union organizing was lawfully terminated. The decision indicates a possible change in the Board’s email use standard might be in the near future.

Facts

T-Mobile fired Chelsea Befort for violating its electronic communications policy. She sent mass emails to all 595 customer service representatives at the company’s Wichita, Kansas, call center urging them to join a union and attend a union event the following night. Ultimately, the NLRB found the termination unlawful because T-Mobile “selectively and disparately enforce[ed] its Acceptable Use Policy, Enterprise User Standard, and No Solicitation or Distribution Policy against [her] union-related email”.

The decision sidestepped the debate over changing the NLRB’s existing standard for workplace electronic communications. Board member David Prouty asserted in a series of footnotes, however, that the current pro-employer standard for email use is fundamentally flawed. He advocated establishing a basic discriminatory enforcement standard under which prohibiting email use for union activity would be unlawful if personal, non-work-related email is permitted. T-Mobile USA, Inc., 371 NLRB No. 163.

Concerns