Issue:
Your company has just begun operating a new corporate intranet to which all employees have access via the computers at their workstations. The intranet includes a site that allows employees to ask business-related questions and receive on-line answers from management. Several employees have asked that the company also provide a separate site for “classified ads,” so that employees may post various personal notices and solicitations. Your advice has been sought: Does your company open itself up to any liability by sponsoring a non business-related classified section? Can you sponsor a classified section, but screen materials before they are posted, or limit the types of materials allowed?
Answer:
The answer to both of these questions is yes: Yes, you are at risk if you allow materials to be posted, and yes, you can restrict the postings. A classified section for personal notices on a corporate intranet is a type of company bulletin board. Neither employees (nor unions) have a statutory right to post anything on employer bulletin boards. Employers do have the right to restrict access to their bulletin boards.
Risk: potentially offensive materials are posted.
Once an employer allows its employees to post non-business material on a company bulletin board, the company opens itself up to certain kinds of legal liability. For instance, an employer could get into legal trouble if an employee or group of employees posts material that is considered offensive to members of a protected class, and the employer, having notice of the posting, takes no action to remove the material or to discipline the offending employees. For example, an employer could be held responsible for promoting a sexual or racial hostile work environment by allowing, through inaction, the intranet classified section to be used for posting sexually or racially hostile messages.
Risk: union solicitations or religious proselytizing.
Another type of legal problem occurs when an employer allows employees to post non-business material on a company bulletin board, but prohibits the posting of certain types of protected material, such as union propaganda or notices of religious affairs. This kind of discriminatory conduct by an employer could be characterized as an unfair labor practice under the National Labor Relations Act, or a violation of Title VII’s prohibition against religious discrimination.
What can management do?
Choose not to sponsor the classified section.
One solution would be to refuse the employees’ request for a classified section on the corporate intranet. Neither employees nor unions have a statutory right to a bulletin board.
Establish a policy requiring permission to post or screening material prior to posting.
If management decides that sponsoring a classified section is a good idea, e.g., to increase employee morale, the employer can and should protect itself by adopting a written policy that allows management to screen material prior to posting and to prohibit inappropriate material. Such a policy will allow management to ensure that nothing is being posted that will offend a protected class of employees. An employer should consider these issues when formulating such a policy:
- Communicate the policy.
State the policy on the bulletin board itself. In addition, include the policy with other workplace policies, such as in orientation packets and employee handbooks. All rules and restrictions should be a part of written rules.- Establish screening procedures.
If notices must first be cleared with a particular person or department before posting, be sure to clearly state that point. In order to monitor compliance, have the screening person initial and date each posting.
- Be consistent.
If screening is required, the employer must follow the policy consistently. Failure to be consistent could be a violation of the National Labor Relations Act (NLRA). If the policy allows (or does not prohibit) employee-generated notices, then the employer cannot prohibit employee-generated postings that conform to all policy requirements. Employers cannot prohibit a union poster inviting workers to an offsite rally, for example, while at the same time allowing employee-generated postings inviting workers to attend a baby shower.
- Limit timeframe.
Establish a fixed timeframe for postings and have the bulletin boards reviewed periodically to ensure that the material is current. Placing removal dates on each posted item is one way to see that notices don’t overstay their usefulness. If the board will be used for employee-to-employee notices (items for sale, car pools and the like) it might be easier just to state that the board will be cleared at the end of every month, and that those desiring to carry over any notice should remove and repost.
Enforce the policy uniformly and consistently, without discriminating against unions or a protected class.
Once an employer has adopted a policy concerning the use of non business-related bulletin boards, it must tread lightly and take extra care to ensure that the policy is uniformly and consistently enforced. While the policy itself may be perfectly legal, if the employer is careless in its enforcement of the policy or uses the policy to screen union postings, the employer may be charged with violating the NLRA. The biggest problems in enforcement of bulletin boards arise when an employee or group of employees decides to post union propaganda. Employers must keep in mind that any inconsistent or “spotty” enforcement of the policy in such instances can create legal issues for them. Moreover, if the company has a lenient bulletin board policy, but changes the policy in reaction to pro-union or union organizing efforts, a violation of the NLRA may be found.
Cite: National Labor Relations Act, Section 8, Title VII of the Civil Rights Act of 1964.
Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.
