Blog Archives

Uncategorized
Whoa! Employees Now Have a Legal Right to Use Work Email for Union Organizing

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.

 
Doing your 2015 Budget? UI Tax Rates Will Be Lower Next Year

Good news for business owners, executives, HR professionals, or managers who are currently finalizing your 2015 budget:  the State of Hawaii Department of Labor and Industrial Relations (“DLIR”) just announced that the Unemployment Contribution Rate for 2015 will drop from Schedule E to Schedule D, which equates to approximately a 22% decrease (or $100 less) per employee on average (although your exact savings will vary depending on your company’s reserve ratio).

This stepdown in the UI contribution schedule comes as a result of the current unemployment rate of just 4.1%.  With a low unemployment rate, less money is being withdrawn from the fund, thereby allowing the fund to get replenished.  In fact, the unemployment fund currently sits at 0.99 of the adequate reserve level, which means the fund almost had enough money to lower the UI Contribution Rate to Schedule C.  Almost.  Dang!

In any event, this is a huge improvement from just four years ago, when the fund went bankrupt and the State had to borrow $183,000,000 from the federal government to pay unemployment benefits.

So…I hope this serves as good news for you all during this holiday season.

happyholidays

You can read a copy of the DLIR’s press release on the UI tax rate here:  UI Press Release.

 
2014 Legislative Session: Sine Die

Last week, we passed the final day of the 2014 Legislative Session, otherwise known as Sine Die.  Sine Die is the last day for legislators to vote on bills that are up for Final Reading.  Bills that make it through Sine Die are sent to the Governor for his approval or veto.

This year, employment-related bills that made it past the Sine Die deadline include:

  • Minimum Wage
  • Payment of Wages via Direct Deposit and Pay Cards
  • Temporary Disability Insurance
  • Leave of Absence of Certain Donors
  • Workers’ Compensation Prescription Drugs
  • Healthcare Issues
  • Private Guards
  • And others…

As I’ve noted in the “Running Updates” post here, the HEC Legislative Digest following Sine Die is now available for viewing on the Legislative Updates section of the HEC Website.   In addition, HEC members can also access a Highlights article that discusses several of these key measures in more depth.

 
2013 Legislative Cycle Over! HEC Provides Updates After Veto Deadline

The Hawaii Employers Council (“HEC”) has an updated Legislative Digest and article highlighting the major employment law bills that became law in 2013.  You can view both documents on HEC’s legislative highlights page here:  Legislative Highlights.

 
NLRB: We Will Continue To Operate

Despite the ruling from the DC Circuit Court of Appeals that the NLRB cannot operate because it does not have a quorum of members, the NLRB issued a statement last week stating that it would continue to operate.  Specifically, on January 25, 2013, Chairman Mark Pearce issued the following statement:

The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.

At this point, the NLRB has two options:   (1) request an en banc hearing with the DC Circuit, which would include all judges from the DC Circuit or (2) file an appeal to the US Supreme Court.  Given these two options, it is more likely that the NLRB will file an appeal to the Supreme Court, because at least three of the DC judges have already ruled against the NLRB.  I will update this blog once the NLRB makes its decision.