Does an employer have to give its union the e-mail addresses of all of its employees? What if an employee says that the employee does not want his/her e-mail address disclosed to the union.
In our client seminar in June we reported that the BC Labour Relations Board had held that an employer that had already provided home addresses and phone numbers did not have to also provide e-mail addresses. This decision was appealed and a 3 person panel of the LRB has held that the employer should have provided e-mail addresses for all employees.
The Board reasoned that in order for the union to comply with its statutory obligation to represent all the employees in bargaining it needed this information. E-mail addresses would allow for more effective communication. It was immaterial that the union could have used the home addresses or phone numbers to get the e-mail addresses or that the union could have used home addresses to communicate. The employer was not entitled to put roadblocks in the union’s path to communicating in the most effective way.
The 3 part legal test the union needed to meet was (1) there is no sound business reason for the employer to refuse, (2) the information could be easily supplied, and (3) the union needs the information to fulfill its statutory duty of representation. The original decision refused the union’s request on the 3rd part of the test - the information was not needed. The employer had argued that privacy requirements also gave the employer a sound business reason to refuse but because the 3rd part of the test was not met, the Vice Chair did not decide this issue. The reconsideration panel held that the 3rd part of the test was met by the union – the information was needed – but did not address the privacy argument.
Employers will need to take care in dealing with any demand for disclosure of e-mail addresses and other personal information about employees. If the employer does not have the e-mail addresses, or an employee has a particular sensitivity to disclosure (e.g. an employee with harassment concerns or domestic issues) an employer may need to consider a different response or other options.
While the LRB did not address the privacy issue squarely (for reasons that are not clear), this case shows the increasing tension between privacy laws and other legal obligations in the employment relationship. We expect that we will see more of these issues being tested in legal proceedings in the future. It is important to understand that privacy rights will not always trump other obligations or allow an employer to say “no”. A more thoughtful analysis will often be needed.