LEGAL BRIEFINGS

NLRB'S NEW E-MAIL SOLICITATION RULES

THE EUGENE Newspapers Guild represented about 150 employees at Guard-Publishing Co., a daily newspaper in Eugene, Oregon. Guard Publishing advised its employees in a written policy that they were prohibited from using its internal communication systems and

When the guild's president sent two e-mails urging employees to wear green to support the union in contract negotiations and to participate in the union's local parade, Guard Publishing disciplined him for violating the non-solicitation rule.

After unfair labor practice charges were filed with the National Labor Relations Board, the board found that Guard Publishing did not violate federal law when it maintained its policy of prohibiting employee use of the employer's e-mail system for non-job-related solicitations.

Under prior precedent, discrimination would exist if the employer disciplined an employee for using corporate resources to send union-related e-mail, but permitted any other types of e-mail unrelated to work. In overruling prior precedent, the NLRB narrowed the scope of what properly defines discrimination.

Now, unlawful discrimination must consist of disparate treatment of activities or communications on the basis of the employee's union activities-for example, if an employee is permitted to e-mail to solicit for nonunion matters, but not union matters.

Although Guard Publishing tolerated personal employee e-mail, there was no evidence that it permitted employees to use e-mail to solicit other employees to support any group or organization. Guard Publ'g d/b/a Registered-Guard, 315 NLRB No. 70 (12/16/07).

IMPACT: Employers can lawfully ban employees from using e-mail for non-work-related activities, including union activities.

COURT UPHOLDS $550,000 VERDICT FOR RACIAL ABUSE

GREG GOLDSMITH, an African-American elevator maintenance worker in Birmingham, Alabama, filed an EEOC charge against his employer, Bagby Elevator Co. Inc. Goldsmith alleged that his supervisor, Ron Farley, regularly referred to African-Americans in insulting and racist language. Goldsmith testified that Farley told a white employee, "Them niggers are crazy. Some of the dumbest niggers I have ever seen." At a store with an African-American employee, Farley told the store clerk, "Look, I bought me a slave." When Goldsmith complained, he was told to accept it.

Bagby's employee handbook included an anti-discrimination policy, but the company's president testified that he was not that familiar with it and was unsure how he would discipline an employee for a violation.

In response to the EEOC charge, Bagby required all employees to sign an agreement requiring all past, present and future claims to be arbitrated. When Goldsmith refused to sign the agreement as written, he was terminated. He then filed a new retaliation charge. A U.S. District Court jury awarded Goldsmith $54,321 in compensatory damages and $500,000 in punitive damages. The U.S. Court of Appeals for the 11th Circuit in Atlanta upheld the jury's award, finding that the employer's reckless indifference to the employee's civil rights justified the award.

The 11th Circuit noted the case provided "an important reminder: despite considerable racial progress, racism persists as an evil to be remedied in our Nation." Goldsmith v. Bagby Elevator Co. Inc., 11th Cir.. No. 06-14440 (1/17/08).

IMPACT: It not sufficient for an employer to simply have a policy and complaint procedure addressing unlawful harassment in the workplace. Employers are advised to communicate their policies, conduct effective training of employees, promptly investigate suspected harassment issues and take steps to put an end to such conduct.