Category: Labor Law

Company Email Use

Employers Regain Control Over Company Email Use

Say “goodbye” to Purple Communications and “hello” to Rio All-Suites Hotel and Casino. On December 17, 2019, the National Labor Relations Board released a new ruling about employees’ company email use. Specifically, the NLRB reversed a 2014 decision that had granted some employees the right to use their work email account for certain non-work purposes. What does this mean? And how long will it last?

Purple Communications Limited Private Company Property Rights

In December 2014, the NLRB decided a case involving Purple Communications. That decision gave a colorful name to a surprising encroachment on private companies’ control over their email systems.

A divided 3-2 Board for the first time ruled that employees had a federally-protected right to use their company work emails to engage in concerted activity for their mutual aid and protection. That refers to employees’ rights under Section 7 of the National Labor Relations Act. It’s the law that allows employees to join unions. And it also allows them to engage in other forms of joint activities toward improving their work conditions.

Three Democratic NLRB members comprised the Purple Communications majority. The two Republican members dissented.

The majority identified some limitations on their 2014 ruling:

  • “First, it applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access.”
  • “Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”

Employer Property Interest Overtakes Employee Interests

A 3-1 Republican NLRB majority has reaffirmed that federal law doesn’t entitle employees to use employer-owned equipment for non-work purposes.

The NLRB now holds that employers can restrict employees’ company email use for non-work purposes, including activity otherwise protected by Section 7.

The Board majority observed that “in modern workplaces employees also have access to smartphones, personal email accounts, and social media, which provide additional avenues of communication, including for Section 7–related purposes”. They did, however, allow that there might be an unusual workplace devoid of such alternative means of communication. There, perhaps, Section 7 rights might trump the employer’s property rights. But the majority did not attempt to hypothesize such a scenario.

On the last day of her term, outgoing Democrat Member Lauren McFarren dissented. She contends, “The majority’s decision aims to turn back the clock on the ability of employees to communicate with each other at work . . . .”

A Philosophical Divide

As with many questions under federal labor law, the NLRB’s ruling on this issue reflects a partisan debate. Several other decisions issued around the same day as Rio All-Suites Hotel and Casino demonstrate the same reality. Democrats and Republicans read the National Labor Relations Act differently. As a result, NLRB precedent may only last slightly longer than a Presidential term. Purple Communications, for example, was the law of the land for almost exactly five years.

Should Employers Change Their Policies?

If you had proactively responded to the NLRB’s 2014 pronouncement that employees had a right to use their work email for non-work purposes, then you might have changed or adopted written policies to that end. If so, you could consider revising those policies again. But it’s not a decision to be made automatically.

Employers who, for example, already allow employees to use work emails for a range of personal communications, should be cautious in how they suddenly limit that freedom. If nothing else, a strict contrary policy could anger and alienate employees. In extreme cases, it might even contribute to the type of employee dissatisfaction that contributes to unionization efforts. You probably don’t want that. (Read: Are Unions Bad? 4 Tips for Employers)

And if you do change your company email use policy or practice now, make sure to keep your ears open for the next time Democrats are in the majority on the NLRB.

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Dues Checkoff

Employers Can Again Stop Union Dues Checkoff Under Expired CBA

In a December 16, 2019 decision, the National Labor Relations Board reverted to a legal principle that had stood for over 50 years. In 2015, the NLRB ruled that employers could no longer discontinue a union dues checkoff after a collective bargaining agreement had expired. Now a 3-1 Board majority restores the long-established standard from a 1962 case.

What Is Dues Checkoff?

Dues checkoff refers to the practice of deducting union dues from employees’ pay and remitting the money to the union. This practice is legal where the union and employer have agreed to it and employees have signed dues-deduction authorizations. Unions usually seek and obtain authorizations from most, if not all, bargaining unit members.

Unions typically bargain for provisions requiring employers to make a dues checkoff. This is at least an administrative convenience for unions. Otherwise, they would need to obtain the dues money directly from individual employees.

Legal Debate

Generally, many provisions of a collective bargaining agreement continue past contract expiration if no successor contract is in place. This results from the obligation to maintain the status quo on terms and conditions of employment. The employer can only make unilateral changes after contract expiration if it first bargains to impasse over desired changes.

There are exceptions to this unilateral change doctrine. These historically have included contract provisions for no-strike/lockout pledges, arbitration, management rights, union security, and dues checkoff.

In a 1962 case involving Bethlehem Steel, the NLRB found that dues checkoff was solely a contractual right that ends upon contract expiration. That analysis governed until 2015. Then, an Obama-era NLRB majority reasoned that “[u]nlike no-strike, arbitration, and management-rights clauses, a dues-checkoff provision in a collective-bargaining agreement does not involve the contractual surrender of any statutory or nonstatutory right be a party to the agreement”. The Board, in Lincoln Lutheran, continued, “similar to other voluntary checkoff agreements, such as employee savings accounts and charitable contributions, which the Board has recognized also create ‘administrative convenience’ and, notably, survive the contracts that establish them.”

New Ruling

In a case involving Valley Hospital Medical Center, the NLRB now reinstates the holding of the 1962 Bethlehem Steel case.

The Republican Board majority (all appointed by President Trump) reiterates that there would be no obligation to checkoff dues unless there is a contractual agreement to do so. Thus, once a contract including that obligation expires, the employer has no further duty to withhold and remit dues.

The Board’s lone Democratic member (whose term expired the day of this decision) strenuously objected. She argues that the majority’s analysis is “irrational” and “serves no legitimate statutory purpose.”

Ultimately, it’s tough to deny the purely partisan rift in opinion on this subject. Union dues checkoff is one of many areas where pro-business Republicans and pro-labor Democrats interpret the National Labor Relations Act differently. As such, future oscillation on this and other essential aspects of federal labor law is predictable.

Impact of New Dues Checkoff Rule

Under this latest ruling, employers have the (current) NLRB’s backing to stop a dues checkoff during periods of contract expiration. Employers must, of course, still negotiate in good faith for a new collective bargaining agreement. Assuming a new contract is reached, the company will likely have to reinstate the checkoff (barring the unlikely prospect of an agreement to remove it from the CBA.)

Note that even if the company ends the dues checkoff, the union may still collect dues directly from their members.

Social Media Policies

Social Media Policies Still Uncertain for Employers

In August 2019, the National Labor Relations Board published an advice memorandum about social media policies. The September 5, 2018 memo addressed particular provisions of written policies of CVS, the retail drug store chain. Although aimed at one employer’s specific policies, the advice memo provides helpful guidance for other companies. But, it doesn’t create absolute certainty on all employee social media issues.

Legal Backdrop – NLRA

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA). The NLRA allows private-sector employees to form unions. It also gives employees the right to engage in other activities for their mutual protection. Fundamentally, that means protection from their employers. This includes rights to communicate regarding terms and conditions of employment–things like wages, hours, and work conditions. These are known as “Section 7” rights, referring to the applicable NLRA provision.

“Social media” emerged as a technological and cultural phenomenon in the last part of the 2000s decade. Employers soon wondered how the new communication methods would affect the workplace. They started drafting policies and guidelines for employees–what they could or (more often) couldn’t do online.

Perhaps surprisingly, the NLRB stepped in and started scrutinizing social media policies. The agency began finding portions of the policies unlawful under the NLRA. It said that the employers’ new prohibitions would arguably deter employees from engaging in communications about work that they had a right to participate in under federal law.

After a political shift in Washington following the 2016 election, the NLRB started to change its tune. In a December 2017 decision involving The Boeing Company, the NLRB announced a less restrictive view on employer policies, including social media parameters.

Current Social Media Policy Standard

The 2017 Boeing case established a new test for judging whether employee policies violate the NLRA.

If a rule is “facially-neutral,” but could be read to violate the NLRA, the NLRB will weigh two considerations:

  1. The nature and extent of the potential impact on Section 7 rights; and
  2. Legitimate business justifications associated with the rule’s requirements.

The NLRB observed that this standard creates three possible categories of such rules.

Category 1 Rules

These are rules that are lawful for employers to maintain as a general matter, either because:

(a) The rule does not prohibit or interfere with the exercise of Section 7 rights; or

(b) Even though the rule has a reasonable tendency to interfere with Section 7 rights, the potential adverse impact on those protected rights is outweighed by employer justifications associated with the rule.

This includes rules requiring “harmonious relationships” and “civility” in the workplace.

Category 2 Rules

These are rules that require individualized scrutiny in the specific case at hand. The NLRB will look at relevant circumstances to balance the impact on Section 7 rights against any legitimate business justifications.

Category 3 Rules

These are unlawful rules where the Section 7 implications cannot be justified by business concerns.

Prohibitions on employees discussing wages and benefits with each other fall into this category.

Lawful Social Media Rules

Here are some of the types of rules that the NLRB’s Division of Advice deemed acceptable in CVS’s situation:

  • Employees who speak on social media about the company “in any way” must make it clear they are a company employee but are not speaking on behalf of the company.
  • Use of any company or brand name or logo as part of a social media account requires prior company approval.
  • Employees may not post anything “discriminatory, harassing, bullying, threatening, defamatory, or unlawful.”
  • Taking or sharing photos from non-public areas or internal meetings is prohibited.
  • Employees may not post “content, images or photos” that they don’t “have the right to use.”
  • Internal communications and information must be kept confidential.
  • Employees must use a disclaimer if they speak about the company on social media.
  • Employees cannot give professional recommendations or references regarding current or former company employees through social media posts.

In the past, the NLRB likely would have found many of these rules to violate the NLRA. While the Division of Advice’s “blessing” of these rules is a good sign for employers, the memo does not guarantee how the NLRB would ultimately rule on any particular rules. The specific words and context of social media policies can change the analysis. As can the composition of the NLRB Board.

Unlawful Social Media Rules

The NLRB advice memo ruled that at least portions of the following types of rules were unlawful as used by CVS:

  • Employees may not disclose “employee information” through social media.
  • Employees who mention their work for the company on social media must disclose their real name and job title.

The Division of Advice stated that the rule about employee information could be problematic because employers cannot prohibit employees from sharing “employee contact information and other non-confidential employment-related information.”

It indicated that the rule requiring employees to self-identify goes against NLRB precedent. Traditionally, employees have the right to engage in collective action without identifying themselves. But, the Division of Advice noted, the employer can otherwise avoid some of its legitimate concerns by requiring even unidentified employees to acknowledge their employment status and disclaim that they are not speaking on behalf of the company.

The full NLRB advice memo regarding the CVS social media policies is available here.

Reviewing Your Social Media Policy

The pendulum has definitely swung back in employers’ favor on this subject. Accordingly, this might be the right time to review your social media policies, assuming your company already has one. If you don’t have one, but want one, then these latest developments can help guide you. But, in either case, most employers shouldn’t rush to impose the most restrictive policy possible without careful consideration of the implications.

First, you should evaluate what employee social media issues your company has had in the past. If none, then your existing policy (or even the absence of a policy) might be sending a sufficient message.

Second, does the nature of your business generate specific impetus for different social media policies than what you currently have? Relevant factors include the nature of your workforce, the prevalence of highly confidential information, the use of social media for conducting positive business activities, etc.

Third, how will your employees respond? Most people by now are accustomed to using social media in their daily lives. Any efforts to curtail their activities could make employees nervous, if not angry. So make sure the justification for greater restrictions justifies the potential backlash.

Finally, if you do want to revise your social media policies, seek legal advice. You can’t simply rely on what the NLRB’s Division of Advice said was okay for CVS. This is an area where every word matters. And, even then, some risk remains. You should have a clear understanding of these risks and attempt to mitigate them in advance.

 

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