By G. Phillip Shuler

Of the many topics suitable for discussion is this article, some have instant appeal while others are less, well, titillating. For example, if this article treated the issue of pornographic e-mails in the work force, I might have captured your immediate interest and held it for the duration.

If, on the other hand, I chose to discuss instead the NLRB's response to the recent U.S. Supreme Court decision in BE&K Construction Company, I clearly run the risk of boring many of you beyond what is acceptable even in a monthly forum on legal issues relevant to the construction industry.

Recognizing the dangers of the latter, yet unwilling to capitulate fully to the lure of the former, I'll try to strike a balance between the two here.

First, a note about pornographic or otherwise insensitive e-mails. Reports suggest that your employees are, likely, sending and receiving them weekly. They may contain images and language offensive to others in your work force, including women, minorities and others in a protected class.

This is the stuff of which hostile environment claims are made. More on this in a moment. But first, a brief introduction to BE&K.

In BE&K Constr. Co. v. NLRB, the U.S. Supreme Court rejected the Board's Standard for determining when a lawsuit amounts to retaliation under the Act. The Court found that a lawsuit may be reasonably based even though it is ultimately unsuccessful if the plaintiff reasonably believes that the conduct challenged in the suit is unprotected under the Act and is illegal.

Before I lose you . . . pornographic e-mail is here to stay; depending on your own proclivities, that is either a good or a bad thing. What is clear is that employers like you will likely be caught holding the bill if or when these e-mails find their way into the hands of a disgruntled employee and his or her opportunistic counsel.

In a subsequent lawsuit, you should be prepared to face these e-mails and - especially if you sent or received the offensive e-mails - you should also be prepared to explain exactly what you meant by them, exactly what is so funny about them, whether you laughed when you saw this one or what your narrative added to that one.

Here's an experiment: find the most offensive or repulsive e-mail that you have saved on your work computer. Print it out (carefully!). Now hold it up in front of you, look into a mirror and begin explaining its nuances without blushing. Now pretend that you are doing it in front of a 12-person jury, a federal judge, a court reporter and maybe your spouse.

Feeling a bit squeamish? Maybe it's time for a BE&K break.

Alright, the Supreme court announced a new BE&K standard, so what? Well, it may be important to you, either now or in the future. Here's how. Non-union contractors have arguably been constrained in their ability to file lawsuits against either employees or unions alleging misconduct by the fear of facing an unfair labor practice charge of retaliation.

The old rule seemed to suggest that if a lawsuit was unsuccessful - for example, if a non-union contractor filed suit against a union alleging some improper conduct, and if the case was lost - then a U.L.P. charge would necessarily follow and be sustained. That is no longer the case.

Now, and in light of the BE&K decision, courts and the Board may find that even though a lawsuit is found to be without merit, so long as it is "reasonably based," not frivolous, and there is no evidence to support the claim that the lawsuit would not have been filed "but for a motive to impose the costs of the litigation process, regardless of the outcome," then a complaint of retaliation must fail.

BE&K, therefore, may make it less risky for non-union contractors to initiate legitimate claims against unions or employees.

This antiseptic discussion of BE&K may have helped to calm some of you who grew panicked at the thought of explaining a vulgar e-mail to 12 jury members who were definitely not laughing. This is, after all, no laughing matter. The costs - in time, money and effort - of defending a hostile environment lawsuit can be significant, and an adverse judgment can cripple some businesses.

So, this might be a good time to, first, remind all of your employees that your company does not tolerate such behavior, and next, to implement and enforce a strict policy prohibiting the receipt and forwarding of these e-mails in the work place.

Do it now, and you may be saving yourself untold grief in the future.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.