As many employers know by now, the National Labor Relations Board recently created two new rules regarding employee e-mails. These new rules are yet another effort by the NLRB to help labor unions organize new workforces, but which are making employers’ lives significantly more difficult. Although the rules impose even more obligations on employers, there are steps they can take to minimize these burdens.
As background, the NLRB took two significant actions last month regarding employee e-mails. First, in Purple Communications, the NLRB granted employees the right to use their employers’ e-mail systems to discuss union organizing and similar matters. Under this rule, if an employer allows an employee to use its e-mail system to perform his or her job, the employer must also allow the employee to use the e-mail system to communicate with coworkers about workplace grievances, union organizing, strikes, and similar matters, with very few limitations. This decision provoked a strong response from employer groups, who argued that it infringed on employers’ property and First Amendment rights. The NLRB also issued its final “quickie election” rules, which require employers to disclose employees’ personal e-mail addresses to labor unions during election campaigns.
Fortunately, there are steps employers can take to minimize the burdens these rules create, and avoid giving labor unions another significant advantage. The best response will depend on the employer’s business needs, including how the employer needs to communicate with employees and what means it has available to do so. With that being said, in certain circumstances an employer may be able to negate the Purple Communications rule by communicating with employees through an “intranet” or internal website that only the employer can control, as opposed to mass emails. An employer also may want to: (i) limit which employees can use the employer’s e-mail system for work (and thus limit which employees can use the e-mail system to discuss workplace issues); (ii) require employees to include disclaimer language in any non-business e-mails they send; or (iii) remind employees that it is monitoring their e-mails (without going so far as to conduct unlawful “surveillance” under federal labor law). If an employer implements these changes, it should be careful to do so before any ‘protected activity’ begins occurring, in order to avoid allegations of discrimination.
Similarly, if an employer avoids communicating via e-mail, it may be able to stop maintaining employees’ personal e-mail addresses, and therefore avoid having to disclose them to a labor union during an organizing campaign. An employer also can help protect itself in these areas by implementing a lawful procedure to solicit employees’ input about working conditions, which may make employees less likely to turn to mass e-mails to express themselves. Finally, once an employer implements these changes, it should train its supervisors and revise its policies to reflect them. (At a minimum, most employers will need to revise any rules that categorically prohibit solicitation via e-mail.)
Altogether, as the NLRB continues to change the rules to benefit labor unions, it remains important for employers to update their policies and procedures accordingly. As with most of the NLRB’s other new rules, employers can minimize the burdens they experience by responding prudently.