Late last year the National Labor Relations Board rendered a couple of decisions that are a radical departure from previous actions. I wrote about these on December 15th. One of those decisions dealt with whether employees can use a company email system to conduct union organization. In a 3-2 decision along party lines the NLRB overturned a long standing decision and allowed unions’ access to employer email systems.
In 2007 in a case known as Register Guard the NLRB had ruled at that time that unions did not have a right to a company’s email system for the purposes of organizing. In this most recent decision called Purple Communications, Inc., after losing two attempts to organize workers at call center, the Communications Workers of America (CWA) claimed an unfair labor practice based on the company’s policy of restricting use of the email system to business purposes only. The policy also restricted communication with any organization that had “no professional or business affiliation with the Company” and from “sending uninvited email of a personal nature.” The NLRB’s own Administrative Law Judge rejected the case and upheld the prohibition established in Register Guard. The CWA appealed and it went to the full board for a decision. Naturally the biased board ruled in favor of the CWA.
Basis for the decision
In a 60 page decision, the Board ruled that they were addressing a changing pattern of the way the world of work operates and said that previous decisions put too much emphasis on employers’ property rights versus employees’ Section 7 rights. They said that the use of email was now the prime method of employees engaging in protected concerted activity basically replacing the water cooler as a congregation area and therefore the employees have a presumptive right to use company email systems during non-working time to discuss wages, hours and working conditions.
Non-work time issue
In an analysis of this decision by Mintz Levin, in their Employment Matters Blog, attorneys Arnold and Long said there are some major issues with this decision. The first issue is how does an employer distinguish between non-work time and work time in the sending, receiving and reading of emails? Unlike in times past when employees could go on a break and have a face to face conversation that was clearly non-work time, that is impossible to control in an email situation. The employee sending the email may have written it on a break, though they should not be at their computer if it is a break, but the employee receiving the email is not going to be on a break when they read the email.
The NLRB decision did say that employers could monitor the email system to enforce proper use, however, they said “that employers cannot focus their monitoring efforts on protected conduct, including by increasing monitoring during an organizational campaign or by focusing on certain types of protected conduct or on known union activists, or even create an impression that it is doing this.” As Arnold and Long said “Think about that for a second. You supposedly have the right to review your employees’ emails except when you don’t. And employees supposedly have no expectation of privacy except when they do.” Arnold and Long further concluded that this monitoring aspect raises more questions than it answered and the Board declined to answer these questions. The Board also pushed aside the costs associated with monitoring as being minor. The truth is anything but.
What this means to employers
In addition to Mintz Levin, Seyfarth Shaw and Fisher Phillips have also weighed in on this issue. All of them suggest reviewing your current email policies. You do not have to provide access to all workers who might be covered by Section 7 protections, for examples workers on an assembly line. Seyfarth Shaw recommends “employers need to ensure they apply their email system policies, including monitoring, uniformly and consistently. Finally, it never hurts to very clearly remind employees that they have no expectation of privacy when they use company email systems—even if they are engaging in Section 7 protected activities.” They all recommend staying away from monitoring workers that union ties differently than other workers.
Seyfarth Shaw and Fisher Phillips have suggested that some employers may opt to cut down on email use as much as possible. I have one client who actually forbids the use of email for intra-company communication and requires all communication internally to be conducted via their instant messaging system. Unfortunately the NLRB has indicated they could extend their decision to these types of systems as well.
E-mail use declining?
In an age where there is already talk of the decline of e-mail usage, could a decision like this push that even further? Additionally there is already talk of the dislike that Millennials have for email and the preference they have for communication by text message. It seems to me that if the unions were smarter they would try to organize younger workers in this manner. They would not run into as many issues with work vs non-work time.
In the meantime
In the meantime the law firms suggest reviewing your policies, enforcing them and waiting for the US Court of Appeals to hear the case to see if this decision is upheld. If you are currently engaged in a union campaign you may want to seek the help of a good labor attorney to provide you with guidance on this issue.