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NLRB Reverses Email Position, Again

on Thursday, 2 January 2020 in Labor & Employment Law Update: Sarah M. Huyck, Editor

Technology sometimes outpaces the law.  And those who interpret laws from a bygone era sometimes struggle to adjust to modern circumstances.  That’s exactly what happened with employer controlled email systems.

When the National Labor Relations Act was passed over 80 years ago, Congress did not fathom that employees might organize unions or protest working conditions with keyboards and computers.  Back then, the debate initially focused on whether employees could use their workplace to conduct organizing activity.  Within roughly a decade of the passage of the NLRA, the Supreme Court answered “yes,” prohibiting employers from banning organizing activity at work, and seeking to “balance” employee rights against employers’ need to maintain order at work.[1]

Gradually, employers learned that employees can organize and protest at work, within well-defined limits.  Basically, literature can be distributed in non-working areas, during non-work time.   Solicitation of union support must also occur during non-work time.  Bulletin boards, meeting rooms, and copy machines were deemed off limits, and not available for organizing purposes, as long as the “business only” prohibition was consistently enforced.

Then came email.  By the 21st century, email had become in some workplaces the modern version of what used to be casual chatter around the drinking fountain.  The National Labor Relations Board had to decide whether email, like copy machines and bulletin boards, was private property that could be limited to employer only purposes; or whether it should be fair game for organizing. 

The Board first squarely addressed this issue in 2007, deciding at that time that employer email systems were in fact private property that could be restricted for business only purposes.[2]  Seven years later, and after a shift in the political party in power, the Board reversed itself.  In 2014, the Board decided that employees with job related access to employer email could use that technology for organizing and protest purposes, on non-working time.[3] 

Now, once again, the Board changed its mind, no doubt in part to the political shift in the majority of Board appointees since the last Presidential election.  Shortly before Christmas of 2019, the Board returned to its 2007 standard.[4]  Employers can once again prohibit non-business use of their email systems. 

Before celebrating too much, employers inclined to tightly control organizing or protest related emails must also remember they cannot do so inconsistently.  That means, for example, that if employers allow email solicitation for non-business purposes they find non-objectionable (i.e., charitable fundraising, March Madness brackets, after hours cocktails), they cannot legally restrict union related solicitation or protests. That’s called unlawful discrimination, as with any disparate rule enforcement that singles out legally protected activity.

Likewise, employers must also be aware that the Board’s 2019 email position contains another important, albeit rare, caveat.  When employees have no other reasonable means to communicate with each other besides email, they can also use email for union related purposes, regardless of whether employers restrict email to only business purposes.

What now?  Time for another philosophical and policy debate.  Most employers revised their email policies after the Board’s 2014 decision giving employees the right to use email for non-business purposes, on non-work time.  It’s now time to reconsider just how tightly employers want to control their email, and whether your current policies accurately reflect that philosophical opinion.

Mark McQueen

 

[1] Republic Aviation Corp v. NLRB, 324 U.S. 793 (1945).

[2] Register Guard, 351 NLRB 1110 (2007).

[3] Purple Communications, 361 NLRB 1050 (2014).

[4] Caesars Entertainment d/b/a Rio All Suites Hotel and Casino, 368 NLRB No. 143 (Dec 16, 2019).

 

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