Raise your hand if you’ve got a policy that says something like “personal use of company email is prohibited.” Those of you with your hands up will likely have to make some changes if the National Labor Relations Board (NLRB) continues down the road it’s on.
At the request of the Obama Administration, the NLRB has set out on a scorched earth crusade to eliminate any employer practices or policies that could remotely prevent an organized labor entity from taking root in a place of business.
Perhaps you’ve heard of Section 7 of the National Labor Relations Act (NLRA). It gives employees the right to take part in “concerted activities for the purpose of collective bargaining or other mutual aid or protection … ”
In other words, employees can plan or coordinate activities that may lead to accepting union representation — which, in turn, means employers cannot prevent employees from taking any such actions. It essentially gives employees to right to discuss the terms and conditions of their employment, because those kinds of discussions may lead them into a union’s arms.
Interpreted, and applied, broadly
The NLRB, under President Obama, has interpreted this section very broadly and is applying its interpretation to stop employers from taking any action that could possibly be seen as restricting employees’ abilities to improve their work environments.
Those are some pretty common policies that, up until now, employers were allowed to get away with.
But the NLRB is now saying those kinds of edicts may dissuade employees from discussing the terms and conditions of their employment — so the board is systematically shooting them down.
So what’s in the NLRB’s crosshairs now? Blanket policies preventing employees from using company email for personal matters.
These policies were OK under the Bush-era NLRB, but are now under heavy fire.
Back in 2007, toward the end of President Bush’s term, the NLRB ruled in a famous case involving Register Guard, a newspaper publisher.
The ruling said the employer’s policy, which prohibited employees from using its email system for non-work-related purposes, was legal.
In its ruling, the NLRB stated:
“… employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.”
Since then, many employers have adopted policies similar to Register Guard’s.
So what’s the problem now?
Fast forward to present day.
A labor organization filed charges against Purple Communications, Inc., a company offering deaf and hard-of-hearing text and video services. The charges claim the company’s policy prohibiting personal use of electronic equipment and systems is unlawfully restricting employees rights to discuss the terms and conditions of their employment.
An administrative law judge dismissed the claim and based his decision on the NLRB’s ruling in the 2007 Register Guard case.
Unhappy with that decision, the defeated labor organization has taken its case to the NLRB and requested that the board overturn the decision the Bush-era board made in the Register Guard case.
The Obama-NLRB’s reaction: Let’s get the issue back on the table.
For employers with similar no-personal-use email policies to the ones adopted by Purple Communications and Register Guard, this should come as an unsettling development.
If the NLRB rules that such policies do indeed violate employees’ NLRA Section 7 rights (a distinct possibility taking Obama-era case law into consideration), it’ll be back to the drawing board for employers that have adopted them. Although, hopefully, the NLRB’s decision would include some ways employers could tailor such policies to comply with its decision.
After agreeing to revisit the Register Guard decision, the NLRB posted a notice inviting organizations and other interested parties to submit answers the following questions:
- Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
- If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
- In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
- Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
- Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?
For info on where and how to submit answers, see the NLRB’s notice (PDF).
We’ll let you know when the NLRB hands down its final decision.