Originally published by Eric Welter.
In a decision dated December 11, 2014, the National Labor Relations Board ruled that an employee’s rights under Section 7 of the National Labor Relations Act now extend, in most cases, to the use of company email systems. Section 7 of the Act addresses employer interference with employee rights associated with organizing, unionizing or otherwise engaging in “concerted activity associated with mutual aid or protection”.
The case, Purple Communications, Inc. and Communications Workers of America, AFL-CIO, concerns whether or not employees could use an employer’s email system for the purpose of communicating with one another regarding a union organizing effort underway. The employer, Purple Communications, maintained a policy in its employee handbook prohibiting employees from using company email systems for anything other than “business purposes”.
During the process of engaging in a unionizing effort, the Communications Workers of America (CWA) filed an unfair labor practice charge with the NLRB claiming that the employer’s written policy was in violation of the National Labor Relations Act. It should be noted that the charge was filed without any claim that employees were disciplined or discharged for violating the company’s policy. Rather, the charge was that the policy itself was unlawful.
In a 3-2 decision, the NLRB ruled that employees indeed do have a right to use company email systems to communicate with one another when they engage in concerted activity as defined in Section 7, and therefore that use of company email systems for these purposes is protected under Section 8(a)(1) of the National Labor Relations Act.
Key parameters to the decision are as follows:
1. The ruling clearly applies to any employee who has been granted access to an employer’s email systems in the course of their work.
2. Section 7 activities can be restricted by employer mandate to only take place outside of work time, but such a policy must be consistently defined and enforced.
3. In other circumstances, employers may be able to establish a justifable ban on employee use of employer email systems outside of work time, but doing so places a burden on the employer to demonstrate that doing so is essential to maintain production and discipline.
4. Employers may maintain control of their email systems and perform surveillance of employee email use but employers create liability for themselves if they fail to create and enforce such policies well in advance of any union organizing campaign or other concerted activity, since creating new policies or suddenly enforcing old ones only when such organizing efforts are underway would likely be considered unlawful.
Laconic Lookout : Employers have presumed for a long time that the digital communication tools they provide to their employees, including email and social media among others, are strictly the private property of the employer. However, as employee engagement with such communication technologies increases, the NLRB and other parties may increasingly view them as common assets – owned by the employer but legally accessible, as a right, by employees. Employers should recognize this trend and respond accordingly, most notably by revising employee email access policies to ensure compliance with NLRB protections for concerted activity.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://ift.tt/1Gjyj8O
via Abogado Aly Website
No comments:
Post a Comment