On July 28, 2020, the National Labor Relations Board (NLRB) proposed additional amendments to its current rules and regulations governing election procedures. One of the proposals would modify what employee contact information employers must provide to unions before the election. Specifically, employers would no longer be required to disclose employees’ personal email addresses and home and cellular telephone numbers.

History of Employee Voter Lists

In a 1966 case involving Excelsior Underwear, Inc., the NLRB established a requirement that employers provide unions petitioning to represent employers with a list of eligible voters before the election. Employers originally had to include only the employees’ home addresses:

“[The access of all employees to such communications can be insured only if all parties have the names and addresses of all the voters. In other words, by providing all parties with employees’ names and addresses, we maximize the likelihood that all the voters will be exposed to the arguments for, as well as against, union representation.”

In 2014, an Obama-era NLRB majority revised its election rules and regulations. These amendments included new employee contact information requirements for the voter lists. Employers had to disclose all “available” personal email addresses and home and personal cellular telephone numbers of all eligible voters. According to the NLRB in 2014, this addition addressed the dramatic change in electronic communications. Reasons provided in support of this greater disclosure included:

1. The prevalence of telephones as compared to 1966;
2. The ability to leave voicemails if someone doesn’t answer the original phone call;
3. The emergence of cellular and smartphones as a universal point of contact combining telephone, email, and text messaging;
4. The need to reach persons who rely on their phone, rather than email for communication; and
5. The fact that some employers may not bother to update physical addresses and may contact their employees exclusively via phone.

Proposed Change Regarding Employee Contact Information

The 2014 rule imposed new administrative burdens on employers and raised privacy concerns from employees.

Now the NLRB seeks to undo much of the 2014 expansion of the voter lists. The proposed rule would eliminate the additional employee contact information, specifically the personal email addresses and home and cellular telephone numbers.

A press release announced, “The Board believes, subject to comments, that elimination of this requirement will advance important employee privacy interests that the current rules do not sufficiently protect.”

Public Comment Period

The public has until September 28, 2020, to submit initial comments. There is then another opportunity to submit replying comments (to comments submitted by others) by October 12, 2020.

Assuming the proposed rule takes effect, it will only affect employers involved in an NLRB election. These most often consist of situations where a union is seeking to represent a group of employees in a company.

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