Client Confidentiality

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. Employers should review their e-mail and computer use policies to ensure their business objectives are achieved in a lawful manner.

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.

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