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By: David Cole
If you have been diligent about reading our prior articles or attending our seminars (examples of them here, here, and here), then you have, hopefully, implemented or revised your e-mail, social media, and “bring your own device” or “BYOD” policies to address issues raised by Section 7 of the National Labor Relations Act. Section 7 gives employees the right to engage in “protected concerted activities,” even if your workplace is not unionized. As a result, the National Labor Relations Board (“NLRB”) has taken the position that employers cannot enforce policies that may restrict employees’ right to engage in concerted activity.
While employers cannot restrict employees’ rights, they do not have to permit employees to use company-provided communications systems for non-work purposes, such as concerted activity – at least for now. This is because under existing law the NLRB has taken the position that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” But this may change soon. Last week, the NLRB announced that it is considering changing its position, and it is inviting public comments on whether to do so. In other words, the NLRB is considering a position that employees have a statutory right to use their employers’ email, Internet, and phone systems for union activities and concerted activity.
There already are a number of issues that employers have to consider when crafting their policies. For instance, many employers limit use of their email, Internet, and phone systems to business purposes only. They also monitor their systems for a variety of reasons, such as protecting sensitive data from improper disclosure, customer service, managing productivity, and protecting against discrimination. But if the NLRB gets its way, these limitations may become unlawful and employers will have to let employees use their systems for much more than work. They will also have to be more careful in how they monitor their systems.
You can read the NLRB’s notice and request for comments here. Employers wanting to oppose this change will have to act fast because the deadline for comments is June 16, 2014.