A recent National Labor Relations Board Shore Point Advisory Letter gives a bit of good news to employers who want to use modern monitoring technology to monitor employees that they suspect are breaking work rules. On November 2, 2015, the NLRB concluded that an alcoholic beverage distributor (Shore Point), did not violate labor laws by failing to negotiate with its employees’ union before installing a GPS tracking device on an employee’s company truck. Shore Point suspected that the employee was stealing time while on his work routes. Shore Point’s collective bargaining agreement contains rules against stealing time.
Shore Point hired a private investigator to follow the employee to collect evidence for disciplinary purposes, an established practice the union had not objected to in the past. The investigator placed a GPS tracking device on the employee’s truck to maintain and regain visual contact. The GPS was only installed on the employee’s vehicle on the days when the investigator was following the employee, and was used as a backup method in case the investigator lost visual sight of the employee and his truck. Based on the investigator’s observations of the employee engaging in misconduct, Shore Point terminated the employee. The union filed a charge alleging that the employer unilaterally engaged in electronic surveillance without bargaining in violation of the National Labor Relations Act.
The NLRB determined that Shore Point did not have an obligation to bargain over the installation and use of the GPS device. Although the use of the device was a mandatory subject of bargaining, it did not amount to a material, substantial, and significant change in the terms and conditions of employment. Shore Point had an existing practice of using a personal investigator to monitor employees suspected of misconduct. Using a GPS tracking device was just “a mechanical method to assist in the enforcement of an established policy,” and therefore was not a material, substantial, or significant change in policy. The NLRB also noted that the GPS device only added to information that the private investigator had collected through personal observation, did not increase the likelihood of employee discipline, and did not provide an independent basis for termination.
At least two lessons can be learned from this case. First, when crafting employee work rules subject to bargaining, build in flexibility to allow for use of technological advances in enforcement methods. Second, disciplinary action against an employee should be supported with various types of evidence if possible. Just relying on evidence collected with a controversial or untested method is risky because if the use of the method is determined unlawful, the basis for the disciplinary action disappears.
The National Labor Relations Board (NLRB) recently took the unprecedented position that an employer violated federal law by failing to engage its employees’ union in collective bargaining regarding its response to a data breach. The U.S. Postal Service (USPS) was the target of a 2014 data breach affecting over 800,000 of its current and former employees. The NLRB filed complaints against the USPS claiming that it executed its response to the breach without engaging in collective bargaining with the union. That’s a violation of National Labor Relations Act (NLRA) provisions mandating collective bargaining for any issue that relates to the “wages, hours, and other terms and conditions of employment,” the NLRA alleged.
The NLRB complaints specifically allege that the USPS violated the NLRA by failing to collectively bargain with the union about the impact of the breach on union members. The USPS also allegedly violated the NLRA by unilaterally providing a remedy for the breach (one year of credit monitoring services and fraud insurance at no cost to employees) without giving prior notice to the union and providing it with an opportunity to negotiate the remedy. The NLRB complaints arose from charges filed by the American Postal Workers Union and the National Rural Letter Carriers’ Association regarding the manner in which the USPS handled the breach.
This marks the first time the NLRB has suggested that data breach response and notification measures affecting employees relate “to the wages, hours, and other terms and conditions of employment” under the NLRA. If the NLRB’s position is found to have merit, that potentially makes the breach response process more complicated and costly for unionized organizations. Union negotiations would need to be conducted at the same time the organization is dealing with fallout from the data breach, such as repairing damage to internal systems, investigating the breach, and complying with breach notification laws. Union negotiations could put tremendous pressure on organizations trying to comply with data breach laws that require notification within a short time period after discovery of the breach. There is also a heightened risk of leaks to the press if organizations must notify unions before giving formal notification as required by law.
The NLRB’s complaints against the USPS reinforce the urgency of developing well-crafted breach response plans. Union organizations might wish to add items to their response plans that engage employee unions in the response process. Another precautionary measure is to solicit the input of the union in developing acceptable breach response protocols before a breach occurs rather than in the midst of a crisis situation.
In 2007, the National Labor Relations Board (NLRB) issued its Register Guard decision allowing employers to prohibit employees from using company email to engage in discussions about the terms and conditions of their work with other employees or unions for purposes of “mutual aid and protection,” which are protected under Section 7 of the National Labor Relations Act. In April 2014, the NLRB issued a notice and invitation to the parties in a case involving Purple Communications, Inc. and interested amici curiae to file briefs on whether Register Guard should be overruled. The NLRB received numerous amici briefs on the issue. Employers were relieved when the NLRB deferred a decision on overruling Register Guard in September of last year.
The relief was short-lived. Just three months later, the NLRB reversed course and overruled Register Guard, noting that email “has become a critical means of communication” and is “a natural gathering place” for employees to communicate with each other. In a 3-2 decision involving Purple Communications, Inc., the NLRB ruled that employees who have access to their employer’s email system for work purposes presumptively have a right to use the system for protected communications on nonwork time.
Here are answers to some basic questions about how Purple Communications impacts company email policies:
Must employers give all their employees access to the company email system?
No. Employees have a right to use corporate email for protected communications only if they already are given access to the system for work or personal reasons. Purple Communications does not force employers to grant email access to anyone. For that matter, employers are not required to grant email access to non-employees, including unions and union organizers.
May employers put restrictions on use of company email for protected discussions during nonwork hours?
Maybe. Employers may restrict use of company email to engage in protected discussions during nonwork time by demonstrating that there are actual (as opposed to theoretical) “special circumstances” that “make the ban necessary to maintain production or discipline.” This appears to be a difficult standard to meet. Employers must establish a connection between the restriction and their interest in imposing the restriction.
Is it ok to ban all nonbusiness use of company email?
A total ban would be subject to the “special circumstances” test discussed above. According to the NLRB, the existence of special circumstances “will be a rare case.”
May employers impose guidelines on using nonbusiness of company email?
Yes. Employers may establish specific guidelines for nonbusiness use of corporate email. Use of corporate e-mail for protected communications may be restricted to nonworking time. Employers also have the right to establish “uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” The single example provided by the NLRB is “prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”
May employers monitor their employees’ email use?
Yes. Employers may monitor computer and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for harassment or other activities that could give rise to employer liability. However, employers may not change their monitoring practices specifically in response to union or other protected activity. On that note, any modifications to an email policy that targets protected activity for discrimination is likely unlawful.
Do employers need to change their email policies now?
Purple Communications applies retroactively, so unless the decision is appealed and stayed in the interim, employers should seriously consider modifying their company email policy to comply with the decision.
Does Purple Communications apply to other company electronic communications systems like texting or instant messaging?
Currently no, but the NLRB has signaled that it might extend the reasoning in the Purple Communications decision to other forms of electronic communication in the future.
Purple Haze: NLRB Still Unclear on Whether It Will Stop Employers From Limiting Use of Company Email to Business Purposes
Federal law clearly gives employees the right to communicate with each other and with unions about work-related matters for purposes of “mutual aid and protection.” Commiseration among co-workers about working conditions, work policies, wages, and the like are concerted, protected activity under the National Labor Relations Act (NLRA). But must an employer allow employees to use its computer equipment for such communications? Employers breathed a sigh of relief when the National Labor Relations Board (NLRB) answered “no” in its Register Guard decision issued in 2007. Under Register Guard, employees generally don’t have a right to use their employer’s electronic equipment and systems to engage in protected activity, and employers may adopt a policy prohibiting employees from using company email for non-work purposes, including communications concerning protected activity.
Seven years later, the Register Guard rule is cast into doubt. In Purple Communications, Inc., an employee handbook declared that all company computers, Internet access, voice mail, and the e-mail system were the exclusive property of the company and were to be used only for business purposes. The employer prohibited employees from using such company property to engage in activities on behalf of organizations or persons with no business affiliation with the company. Appling Register Guard, the Administrative Law Judge in the case dismissed a union’s claim that Purple Communications’ employee handbook violated the NLRA. The NLRB’s General Counsel appealed the decision, asking the NLRB to overrule Register Guard.
The NLRB invited interested groups to file briefs addressing whether the Register Guard rule should be overturned. Over twenty organizations representing a broad range of union and management interests accepted the invitation and filed amicus briefs with the NLRB. However, the NLRB ultimately chose to defer deciding the issue. See Purple Communications, Inc., 361 NLRB 43 (Sept. 24, 2014).
The NLRB decided the appeal without reaching the controversial issue of whether to overturn Register Guard because it found that the employer had committed other unfair labor practices. A footnote in the decision noted that the NLRB would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.” This signals that the NLRB is still open to overruling Register Guard, perhaps when a case involving what it considers a more appropriate factual scenario comes along.
For now at least, employers may lawfully adopt work rules restricting use of its email and other electronic equipment and systems to business purposes, and employees may be disciplined for violating such rules. How much longer such rules will stand remains to be seen.
Birth announcements. Girl Scout cookies fundraisers. Leftovers in the company lounge. We’ve all probably received an email at work on these or similar subjects. It’s uncommon for an employee be disciplined for sending an email of such nature. But would that limit a company’s ability to act when employees circulate emails on more controversial topics?
This question was raised in a recent National Labor Relations Board (NLRB) decision involving the Jet Propulsion Laboratory (JPL) affiliated with NASA. In re California Inst. of Tech. Jet Propulsion Lab, 360 NLRB 63 (Mar. 12, 2014). Based on a Homeland Security directive, NASA began requiring JPL employees to submit to federal background checks as a condition of continued employment. Twenty-eight JPL employees who believed that the background check process violated their privacy rights filed a federal class action. The case led to a U.S. Supreme Court decision holding that mandatory compliance with the background check process did not violate the right to informational privacy. See NASA v. Nelson, 131 S. Ct. 746 (2011).
Several of the plaintiffs felt that management did not adequately inform employees about the actual impact of the Supreme Court decision, so they expressed their view of the decision in emails to their colleagues. The emails were sent to several thousand JPL employees using NASA-owned computers and JPL email addresses. After allegedly receiving complaints about the emails, management issued written warnings to the authors of the emails. The warnings alleged that the authors had violated several work policies prohibiting, among other things, “spamming” co-workers; sending unauthorized, non-work-related emails; and implying JPL endorsement of a position on political, social, or legal issues. The authors filed charges with the NLRB claiming that JPL violated their right to engage in concerted protected activity under Section 7 of the National Labor Relations Act.
The NLRB found that JPL employees frequently circulated emails on topics like charity fundraisers and social causes. Such emails technically violated work policies, but there was no evidence of enforcement in those instances. The discipline in this case was thus suspect. Although employees have no legally protected right to use their employer’s computers to engage in protected concerted or union activity, and may be lawfully disciplined for doing so, management may not choose to enforce only work policies involving concerted protected activity.
The decision is not a prompt to start disciplining employees who offer home-baked cookies to co-workers using email. Email can be a convenient tool for building company morale. But the decision does warn against using work policies pretextually to control discussion of work matters. JPL selectively enforced its work policies to silence certain viewpoints on a work-related issue, as highlighted by the fact that JPL supervisors commented on the Supreme Court decision using their work email accounts without being subjected to discipline. Work rules commonly included in an employee manual but inconsistently enforced– like an email use policy – shouldn’t be used as a basis for silencing employees who criticize management or express dissatisfaction with work conditions.