Thursday, November 29, 2012

Cyber Monday and the NLRB: Employers set their standard

Cyber Monday has come and gone for another year.  Apart from a distracted work force, how else has Cyber Monday impacted employers?  While employer policies cover the spectrum with respect to employee use of company computers for internet shopping-- from access during the work day to a total prohibition, there is one common result--a standard for use of computers and the internet has been established, at least in the eyes of the NLRB.  As in reflected in the still controlling case of Register Guard concerning the use of company email, the NLRB looks to whether an employer discriminates in its policy or practice. Allowing employees to use company computers to shop opens the door for similar use in the context of protected, concerted activity.

As the Board and the Regional offices expand their review of company policies and procedures, employers can expect practices such as Cyber Monday shopping to be used as benchmark for other uses.  The life expectancy of Register Guard in the second Obama administration is expected to be limited.  Former Chair Liebman had argued in her dissent any restriction on all non work related email should be presumptively unlawful absent special circumstances. A similar ban on computer usage will likely be judged by a similar standard when Register Guard is reversed.   Employers who want to continue to keep employee's use of computers to work related items only will have to continue to uniformly enforce that restriction. For employers who allowed their employees to participate in Cyber Monday, it  may be too late.

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