These days, a single person uses 3 or 4 data-enabled devices. Computers, tablets, and Smartphone all access any available Wi Fi network and enable communication. People want to have network access at all times of the day and most don’t bother to check if the network is provided by their employer, or a coffee shop or by the municipality. Many people have an email account provided by their provider as well as one or more personal accounts and data plans.
What happens when one or more workers participate in an email campaign to discuss their workplace issues? Do their rights change depending on the account or device used? What if they use their office email accounts where the network used was provided by the employer? What if they use their personal accounts? Does it matter if text messages rather than emails are sent? These are important questions, which need clarity.
In 2007, the National Labor Relations Board (NLRB) said that employees do not have a statutory right to use email systems provided by their employers to communicate with each other about ways to improve their wage and working conditions. Now, the NLRBis reversing that decision. Workers now have legal access to a powerful tool – the corporate email system – to communicate and organize.
Section 7 of the National Labor Relations Act (the Act) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
NLRB’s latest ruling requires employers to allow employees to use company email systems of Section 7 purposes during non-working time. While the ruling does not demand that all workers be provided access to email systems to support their Section 7 activities, the onus of proving legitimate business reasons for denying the use of the corporate email system for such purposes lies with the employer.
Federal labor law protects the ability of employees to communicate with each other and work together for mutual aid and protection, whether backed by a union or not. TWhen the NLRB was asked by a union to verify the highly restrictive email rule of an employer, it felt the need to see if the rights of employees are being affected by such restrictive laws. The NLRB acknowledged that over the past seven years, since the original ruling, email has become a primary point of contact between employees, replacing the office water cooler of yesterday.
Every argument, like a coin, has two sides. Those objecting to the ruling maintain the following:
One thing is for sure: such a change requires employers to review their existing policies and carry the changes to employer handbooks, training manuals and communications to all workers. The National Labor Relations Act includes temporary help in their position on workers’ rights to establish a collective bargaining agreement. Staffing agencies who provide these resources must work closely with their clients to monitor protected activity and be prepared to take steps to support their workers inclusion in union agreements.
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