The National Labor Relations Board has decided, 3-2, that
employees have a right to use their employers' e-mail systems for communicating
about union organizing during breaks and other nonworking time.
The 76-page
decision, which favors labor unions, overruled a seven-year-old board ruling
which had found the opposite. In doing so, the
Board gave preference to employees’ communication rights over employer
property rights. It invalidated a company policy prohibiting employee use of
employer-provided email system for non-work-related messages.
It applies only
to employees who have already been granted access to their employer's email
system in the course of their work, and does not require employers who have not
done so to now provide such access.
The ruling could
be appealed in the federal courts.
The three
Democrats on the five-member board voted in favor of the decision, while the
two Republicans voted against it. All five were appointed by President Obama.
The Board, based
in Washington, D.C., is an independent federal government agency that enforces
the National Labor Relations Act (NLRA), a 1935 federal statute that seeks to
protect employee rights to act together in “protected group activity” to try to
improve their pay and working conditions. One of the principal activities
protected by Section 7 of the federal law is employees’ efforts to organize a
union in their workplace.
The NLRB’s email
rights ruling, issued on December 11, stemmed from a case that the
Communications Workers of America, AFL-CIO (CWA) union filed two years ago
after it failed in its attempt to organize employees of Purple Communications,
Inc., in Rocklin, Calif., a company that provides interpreting services for the
deaf and hard of hearing.
The union argued
that prohibiting Purple Communications’ employees from using the company’s
email system for non-business purposes, and on behalf of organizations not
associated with the company, interfered with the CWA’s organizing efforts and
the employees’ protected speech under the federal law.
The company
maintained that its email restrictions were aimed at cutting down on workplace
distractions. Businesses argued that reversing
the 2007 ruling known as Register Guard could violate employers’
property rights, congest email servers, diminish employee productivity, and
infringe on companies’ First Amendment rights not to communicate the unwanted
messages of others. They also said that employees have personal email accounts
that they could use on their own devices for non-job related purposes.
Register
Guard was also decided by a
3-2 vote during the Bush II administration, on December 16, 2007, with the
three Republican board members voting in favor and the two Democrats voting
against the decision. In that case the NLRB had ruled that employers could
prohibit employees from using company email for union purposes even if they
allowed employees to use the email for other personal, non-commercial purposes.
The CWA argued to
the NLRB that if an employer grants its employees access to the company’s email
system, employees should be able to use it to discuss workplace issues,
including those related to unionization.
“Employee use of
email for statutorily protected communications on nonworking time must
presumptively be permitted by employers who have chosen to give employees
access to their email systems,” the majority opinion said. “Employees' exercise
of their Section 7 rights necessarily encompasses the right effectively to
communicate with one another regarding self-organization at the jobsite."
The
NLRB set two limitations to this new employee email right under Section 7 of
the NLRA:
(1)
Companies are not required to provide email access to employees at all. Rather,
the right attaches once the employer has granted that access; and
(2) An employer
may justify a comprehensive prohibition of non-work-related emails by
demonstrating that special circumstances make the ban necessary to maintain
production or discipline.
One of the
Republican dissenters, Board Member Philip A. Miscimarra, wrote a separate
opinion stating: “Even if one could identify a colorable need for employees to
use an employer's business email system to engage in union organizing and other
concerted activities, I believe the majority's creation of such an employee
right impermissibly fails to accommodate the substantial employer property
rights associated with its computer resources, which typically involve
substantial acquisition and maintenance costs.”
The other
Republican dissenter, Board Member Harry I. Johnson, III, wrote in his own
opinion, that “in light of the vast growth of personal devices and social media
accounts, not to mention face-to-face and other traditional methods of communications,
employees have numerous options available to them in order to communicate
with one another about their wages, hours, and working conditions. Given the
availability of all of these fora, employees do not need to use their employer's
email system to communicate with one another on these issues.
“It is easy for
an employee during his or her nonwork time to send a text message, or make a
phone call, or access the internet via smartphone in order to send a message
through a social media site and communicate with colleagues, or even to send an
email on a personal email service,” Johnson added.
Unless
reversed on appeal, the Purple Communications ruling by the NLRB will
require employers to review their personnel policies and modify any email-use
policies that universally prohibit non-work-related messaging through
employer-provided email systems.
The
NLRB’s Purple Communications decision, Case No. 21-CA-095151, can be
accessed online at: http://www.nlrb.gov/cases-decisions/board-decisions
No comments:
Post a Comment