Recently, Hellmuth & Johnson recommended revisions to employee handbooks following passage of the Women’s Economic Security Act. This time, two recent rulings of the National Labor Relations Board (NLRB) may again cause some employers to consider revising personnel policies or employee handbooks.
The first decision relates to policies that prohibit or circumscribe personal use of email by employees during non-work time. The second deals with arbitration clauses which prohibit class actions or concerted actions. These provisions should be reviewed and, perhaps revised.
These NLRB decisions affect both union and non-union shops. This is because while the National Labor Relations Act (NLRA), which the NLRB enforces, deals mainly with unionized workplaces, there are some provisions that apply to all employers, regardless whether they are unionized.
Under Section 7 of the NLRA it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7.” Those rights include the rights to organize and form a union for collective bargaining, but also the “right to … engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. §§ 151 and 157 (emphasis added). For example, employees who get together to discuss going to the boss to address pay or benefit issues, safety concerns, administration of leave policies, the employee discount, and the like are protected from adverse employment action because of exercise of the right to discuss, plan and/or to band together with other employees on issues of this type.
Personal Use of Company Email
In Purple Comnc’ns, Inc., 361 NLRB No. 126 (Dec. 11, 2014) the NLRB held that it generally is an Unfair Labor Practice to prohibit employees from using the employer email system in the exercise of an employee’s Section 7 rights while off the clock. This reversed a 2007 decision, Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom, Guard Publ’g v. NLRB, 571 F.3d 53 (D.C. Cir 2009), which held the opposite. In reversing Register Guard, the court reasoned that email had become a primary means of communications in the work place and a “natural gathering place” for communications between employees that required protection.
Purple Communications does not require employers to give employees carte blanche use of employer email. The Board endorsed the following limitations:
- Employers are not required to make the company email available to employees who do not use email in the course of their work;
- Employers can prohibit employees from using the email system for non work purposes during work hours and can limit personal use of email to non-work time;
- Employers may establish uniform and consistently enforced restrictions if needed to protect the integrity and efficient operation of the system, such as prohibiting large attachments or audio/video segments;
- Employers can continue to monitor their computers and email systems for legitimate purposes, such as monitoring work performance and efficiency, checking for potential discrimination or harassment and the like and can tell employees that they are monitoring. However, an employer should take care not to vary from the type and level of monitoring during times that employees are organizing or engaging in concerted action, or it may face an Unfair Labor Practice allegation.
On remand to the ALJ, Purple Communications did not introduce any additional evidence on special circumstances justifying its policy, and the ALJ issued an order requiring it to rescind its policy, give notice to employees about the change, and either distribute an insert describing the rescission or providing a lawfully worded new policy or distributing new handbooks with revised language. Purple Communications had a couple of dissenting opinions and may still be appealed, and certainly this area of law will continue to evolve. In the meantime, employers may want to revisit their employee handbooks and/or personnel policies to take into account this most recent decision.
Arbitration Clauses Limited
While the federal courts have been ever expanding the role of arbitration, the NLRB issued a ruling on March 16, 2015 constricting the use of arbitration clauses in employment matters. In Cellular Sales of Missouri, LLC, No. 14-CA-094714, the Board continued to follow its prior precedent that it is an Unfair Labor Practice to have an arbitration clause which “bars or restricts” an employee’s right to file a charge with the NLRB or limits or restricts an employee’s right to file a class action or collective action, in any forum.
In doing so, the Board distinguished a recent U.S. Supreme Court ruling, American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) in which the Court upheld an arbitration clause prohibiting class or collective actions in a matter involving credit cards. The Board reasoned that the NLRA’s explicit right of employees under Section 7 to engage in concerted action for mutual aid and protection would be thwarted by prohibiting class actions or collective legal actions. The Board required Cellular Sales to rescind its arbitration policy fully or to replace it with one that does not limit the availability of class or collective actions in employment matters and to notify that Court in the Cellular Sales matter that it was not enforcing its prohibition of class or collective actions, and to pay the employee’s attorney fees incurred contesting the clause.
The Board ruling does not prohibit the use of mandatory arbitration provisions; it addresses only the prohibition against class or collective action.
Cellular Sales may be appealed.