Chalk this one up for the unions. In a long-awaited decision that involved the NLRB’s own General Counsel asking the Board to overturn existing law, the NLRB recently ruled that employees have a presumptive right under Section 7 of the National Labor Relations Act to use their work email for purposes of (1) union organizing or (2) discussing terms and conditions of their employment – such as wages, benefits and hours – with others, as long as it’s done during non-work time.
What does this mean for employers? Well, for starters, if your current electronic communications email policy prohibits all non-business use of company email, you should look into look revising the policy to ensure that it is compliant with this new law. Otherwise, I have a few quick thoughts about the decision:
- The decision was decided 3-2, with the three democratic Board members making up the majority and the two Republican Board members writing a dissenting opinion. With this decision, as well as several others in the past several years, it appears the NLRB has become an extension of Congress, where decisions are made along party lines and viewpoints, as opposed to the merits of a case or even the law.
- That being said, the Board noted that its decision was “carefully limited,” which means they’re trying not to take things too far, too fast. For example, this decision applies only to employees who have already been given an email account. At the same time, employers are not required to give email accounts to all employees, and non-employees (such as union organizers) do not have a right to such access.
- Additionally, employees’ right to use work email for union organizing applies only during non-work time. Employers can still prohibit non-business use (including Section 7 activity) during working time (i.e. time when the employee should be working).
- This Board decision creates only a presumption that employees have a right to use work email for Section 7 activity. Employers can rebut this presumption by showing “special circumstances” that would require the employer to implement rules or controls in order to maintain production and discipline. (Although the Board noted that it would be a “rare situation” where a total ban would be warranted.)
- Employers can still prohibit non-business use of email. (The only new limitation is employees cannot be prevented from using work email for Section 7 activity during non-work time.)
- Employers can still monitor their employees’ email use. In fact, employers should make sure employees know their email can and/or will be monitored. By doing so, it could discourage employees from using work email for union organizing purposes. However, employers should make sure they do not change their monitoring practices in a discriminatory manner – such as increasing monitoring during a union campaign or only for a select of employees who might be possible union organizers. Finally it remains to be seen whether this decision actually results in increased use of company email for union organizing purposes. In most cases, employees who support a union or lead a union organizing drive try to be discreet and remain under the radar, in order to avoid alerting the company of a union campaign. By overtly using company email for such a purpose, a union campaign would be exposed. Additionally, some employees are fearful of being a known union supporter, out of fear of retaliation by either their employer or co-workers.
And lastly, as noted above, employers should revise their electronic communications and email policies to be compliant with Purple Communications. If you are unsure of what types of revisions should be made, contact a knowledgeable HR consultant or experienced employment attorney.
You can read a copy of the Board’s decision here: Purple Communications.