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Dec 2014
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December 12, 2014

NLRB Reverses Course, Says Workers Can Organize Via Company Email


On Thursday, Dec. 11, the National Labor Relations Board ruled that workers may use their employers’ email systems to discuss workplace issues, including union organizing. The NLRB overturned a 2007 decision that said workers do not have the right to use work email systems to communicate with one another about pay and workplace conditions. The NLRB decision was not unanimous: the three Democrats on the five-member board ruled in the workers’ favor and the two Republicans dissented.

In its decision, the NLRB stated: “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.”

In reversing its prior decision, the NLRB said that the prior decision focused too much on “employers’ property rights and too little on the importance of email as a means of workplace communication.” The NLRB stated that the prior decision had failed to adapt the National Labor Relations Act to the “changing patterns of industrial life.”

The decision leaves open a number of questions:
  • The NLRB declined to fully address use of an employer’s email system by non-employees (for example, by unions trying to organize employees);
  • The NLRB recognized that there are legitimate employer concerns about email systems being overwhelmed by large attachments (such as audio/video segments); and
  • The NLRB recognized that employers frequently monitor email systems for legitimate reasons but that such monitoring could lead to claims that employers were spying
Although the NLRB stated that an employer may justify a total ban on non-work related use of email, the employer would need to demonstrate that special “rare” circumstances make the ban necessary to maintain production or discipline.
 
Finally, even though the NLRB overturned a prior decision, it concluded that its new decision would be applied retroactively.

What is an employer to do now? We recommend employers:
  • Consider which employees should have access to the company email system;
  • Review the company’s email usage policy; and
  • If the employer desires a union free workplace, consider whether it is susceptible to union organizing due to employee disengagement and take steps now to build a positive workplace culture in which unionization will not take root.
For more information, contact Louis Rabaut (616.752.2147 or lrabaut@wnj.com) or the Labor and Employment Practice Group at Warner Norcross & Judd.

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