Lawyers Weigh In On NLRB Employer Ruling

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1 Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY Phone: Fax: Lawyers Weigh In On NLRB Employer Ruling Law360, New York (December 11, 2014, 6:28 PM ET) -- The National Labor Relations Board on Thursday held that workers have a right to use their employers' systems for non-business purposes including communicating about union organizing. Here, attorneys tell Law360 why the decision in Purple Communications Inc. is significant. Joel Barras, Reed Smith LLP "In requiring companies to permit employee use of employer-provided systems for non-work related communications, the NLRB once again elevated employee-protected activity over employer property rights. Not only will employees now have the ability to use their work s in their efforts to unionize or discuss terms and conditions of employment with co-workers, an employer s communication system may also become an incredibly effective tool used to recruit members to form or join class action cases." Steve Bernstein, Fisher & Phillips LLP It appears that the first domino has now fallen, with it the NLRB has handed unions a powerful weapon with the overturning of Register Guard. Emboldening unions with the ability to organize by proxy via represents a further erosion of the rights of employers to police the virtual world. In fact, the decision may ultimately have some unforeseen consequences, as it may prompt some employers to reconsider making available in the first place, particularly in light of an anticipated quickie election rule that may soon require them to hand over all addresses in their possession. Furthermore, the NLRB s reference of Section 7 in the ruling is telling. The decision could be interpreted as giving all employees carte blanche protection to take to the airwaves on working time to gripe about their employers. Howard Bloom, Jackson Lewis PC Today s decision likely will require hundreds of thousands perhaps millions of employers with policies and rules about employee use of their systems to conduct a detailed review of, and potentially amend, those policies. While most employers maintain policies that permit some incidental employee personal use of their systems, to the extent such policies limit use to working time, because of today s ruling, those policies are no longer permissible as employers now must make clear that employee use must be much broader employees must be allowed to use those systems, essentially without limitation, on their non-work time. Of equal or greater concern, the board s decision pays only lip service to the new rule s potential negative impact on employee productivity. Seth Borden, McKenna Long & Aldridge LLP "The big picture significance of the decision is its further confirmation that the board will not be deterred at all by longstanding precedent in pursuit of its policy preferences. Decades of consistent case

2 law will not be an obstacle to the creation of new employee and union rights. More narrowly, the board may now expand this doctrine to require employee and union access to a wider variety of employer equipment and property for organizing purposes." Mario R. Bordogna, Steptoe & Johnson PLLC After Purple Communications Inc., employees have another, now legally-authorized forum to pick from when not just engaging in concerted activity for collective bargaining purposes, but also related to all discussions about terms and conditions of employment generally. However, in authorizing employees under Section 7 to use employer for those purposes during non-work time, the board puts employers between a rock and a hard place. For instance, what about employers who lawfully restrict their employees from using their system during non-work hours in order to try and avoid wage and hour violations? Does doing that now mean a National Labor Relations Act violation? And what about regular employer monitoring of its systems for purposes which have nothing to do with employee solicitations? While the NLRB says unlawful surveillance claims will continue to be judged under the usual standards (and defenses), that doesn t mean employers aren t now open to a significant number of additional claims alleging it as a result of the messy intersection between those standards and the right the board has just created. James W. Bucking, Foley Hoag LLP The official holding is that employers who allow employees to use company systems for work must allow the employees to also use company for union organizing, strike planning and other collective employee actions. In light of the board s other recent decisions finding all manner of obnoxious, disparaging and insubordinate statements by employees to be legally protected, this case means that employees now have a right to say those things on the company s . This applies not only to workplaces already unionized or subject to union organizing: it applies to all workplaces. The board strongly hinted that in future rulings it would find that employees also have the right to use company telephones, copy machines, public address systems and social media accounts. Mark Carter, Dinsmore & Shohl LLP Beyond granting employees a right to use their employers property for organizing purposes, the NLRB s decision will deter employers from monitoring employee traffic. Employers legitimately review employee to insure that the workplace is free from discrimination and to make sure employees are being productive. The decision leaves no doubt that employer monitoring of that is out of the ordinary can itself be illegal surveillance of protected communications. It will not be long before the Agency begins to scrutinize electronic privacy policies in the same fashion as it did social media policies after the first social media complaints were issued. Keith Covington, Bradley Arant Boult Cummings LLP The majority s Purple Communications ruling effectively gives employees a statutory right to use employer systems for non-business purposes, including union organizing. This decision represents a dramatic recalibration of the balance used by the NLRB to weigh employer property rights against the ability of employees to communicate about self-organization and other matters protected by the NLRA. In shifting the balance toward greater employee rights, the majority brushed aside as irrelevant the fact that today s employees already have many other options, such as personal electronic devices and social media, that they can use to communicate with each other. Brooke Duncan III, Adams and Reese LLP The labor board s ruling that a union can hijack an employer s system is yet another example of the board straining every which way to shore up organized labor. It s a very political decision and consistent with a board which under the current administration has adopted a palpably anti-employer agenda.

3 Brian West Easley, Jones Day "The NLRB s Purple Communications decision was not surprising given the current board membership. The 3-2 decision was split along party lines. Consistent with its recent decisions regarding social media, the NLRB s decision signals a shift in national labor policy which elevates employee free speech rights over employers property interests. Significantly, the decision falls short of granting access to nonemployee union organizers, and does not authorize personal during working time. However, the decision leaves many questions unanswered regarding the scope of permissible employee use, including whether employers can impose reasonable limitations on employee use of business information systems." Hope B. Eastman, Paley Rothman "The NLRB s decision in Purple Communications should come as no surprise to anyone who has watched the evolution on the board s decisions on employee use of social media to exercise Section 7 rights. The board s decision, over strong dissents, expands the scope of these rulings. The board members passionately argued among themselves about the centrality of for employee communication. Finding it key, the board ruled that the law protects non-working time use of the company s by employees who have been given access to their company s system. Influenced by the fact that use is widespread and that most employers permit some personal use, the board saw itself as adapting the NLRA to 'the changing patterns of industrial life.' Employers retain the right to deny any expectation of privacy and monitor." Robert E. Entin, Polsinelli PC The NLRB continues to seek ways to interject itself in the workplace, union or non-union, and regardless of whether there is an active organizing campaign. When faced with decisions concerning everyday use of and handheld devices, companies must be able to analyze the law and balance that with the needs of the growing mobile workforce. Prior to today, virtually all employers believed that they could enforce reasonable electronic use policies. The law has been settled on this subject for years, and in reliance on that settled authority, employers have spent time and resources drafting and enforcing policies. Employers should promptly examine their communications policies for compliance with the new standard in Purple Communications. Marjorie M. Glover, Chadbourne & Parke LLP "Although the ruling may have been crafted to be carefully limited in scope, the ruling may have a far reaching impact on employers. Many employers now use as one of the principal ways to communicate with employees. This ruling applies not only to union organizing activities, but to other statutorily protected activities such as discussion of working conditions. As a result, this applies not only to union employees but to non-union employees as well. It may encourage some employers to ban workplace altogether. Employers will need to revisit (and in many cases revise) their social media policies to reflect the new NLRB decision." Mark Konkel, Kelley Drye & Warren LLP Ironically, this decision will just make employers get tougher about their policies. The decision tries to convert something that employers literally own into something they no longer control, but it s so full of holes you could drive a truck through it. Employers should rely on the language of the decision itself, which says that employees can use for organizing purposes on nonworking time. Employers can require employees to leave the workplace when not working, and they can still control employee access to electronic systems outside of working time (it s not employee use once they don t have access).

4 Jan Mock, Nossaman LLP The NLRB decision in Purple Communications, Inc. is an about-face of earlier precedent, though not surprising because electronic communications have become the standard form of business communications since Register-Guard was decided back in 2007, which limited use of . Today, and related forms of communications are not only commonplace methods of exchanging ideas and directives, they are typically the expected form of communication. The impact of the decision is farreaching in the sense that it has theoretically created thousands more water coolers in the workplace. Congregating, and engaging in protective activity using company resources, is now virtually unlimited. Patrick Muldowney, BakerHostetler The Purple Communications decision constitutes a significant infringement upon an employer s right to limit the use of their technology, creating confusion and disruption in the workplace. Unlike traditional non-solicitation rules prohibiting work-time conversations, s are sent to employees who may be working; therefore, policing whether employees are actually working will be impossible. Tom Posey, Faegre Baker Daniels Importantly, the ruling does not require employers to give all employees accounts or grant them access, so if an employer decides that a particular position does not need access to its system, it can still withhold such access. Employers are also still free to restrict employees from using for non-work purposes during work time, so employees are not gaining the right to engage in organizing activity via while they are on the clock. In addition, employers can still impose a complete prohibition on use of for non-work purposes, but only where they establish that special circumstances in its workplace justify the prohibition. John P. Quirke, McCarter & English LLP Given the NLRB s expansion of what is protected in the age of technology and social media as the dominant means of communication, this comes as no surprise. It creates significant perils for employers. The significance of the decision is that employers need to demonstrate the intent of why they are reviewing employee s to ensure it is not misconstrued as improper surveillance. Employers must generate policies relating to employee surveillance to show that the monitoring activity is in compliance. When disciplining employees who have engaged in protected activities related to company , prudent employers need to consult counsel before taking action to help protect the employer against potential unfair labor practice charges. James R. Redeker, Duane Morris LLP The NLRB s decision in Purple Communications is remarkable not because of what it said but because of what it didn t say. What the board did not address was the rest of Register Guard relating to the personal use and charitable purpose exceptions to no-solicitation rules. The board permits employers to restrict the use of s to non-work time. That s okay for the sender, but what about the recipient? Presumably, the same restriction will apply. How will a recipient know which is to be opened when? Should there be a rule that all non-work s state in the subject bar non-business. If so, won t that guarantee that the will be opened as soon as it hits the inbox, during working time? Purple Communications is as opaque as the name implies. Christopher Scanlan, Arnold & Porter LLP Christmas came early for organized labor this year. Common-sense restrictions on personal use and large reply all chains are now cast into doubt, or at a minimum, will now be subjects of years of litigation and potential labor unrest. The number of questions left unanswered by the board's decision and the board's seeming obliviousness to their real-world significance is nothing short of breathtaking. The one virtue of this decision is that it has such a wide-ranging impact, and is so heedless

5 of employer's rights, that it may be the first substantive NLRA case in years to reach the Supreme Court. Marc K. Sloane, Miles & Stockbridge PC Through its decision today overruling Register Guard, the board s majority finds that because an employer s system is an effective means of communication between employees, an employer must allow its employees to use that system for non-work-related communications. In so doing, it overruled a clear standard for one which will require case-by-case analysis. The board did hold that its newly created presumption may be rebutted. However, the decision makes it clear that an employer seeking to rebut the presumption will be faced with a significant evidentiary burden. While the board did take pains to point out that its decision did not grant access to non-employees, it is unrealistic to expect that outside union organizers won t become involved in the soon-to-be commonplace union campaigns. Alex Stevens, Haynes and Boone LLP Although the board majority in Purple Communications emphasizes the carefully limited scope of its decision, today s ruling upends well-established labor law at the expense of employer property rights and the commonsense principle that work time is for work. As a result, employers will struggle to update their electronic communications policies without meaningful guidance from the board regarding the kinds of special circumstances that would justify placing controls on employee use to maintain production and discipline. This struggle will continue as employers wade through Purple Communication s implications for employer monitoring, internal investigations and the possible extension of the board majority s newfound indifference to employer property rights to other employer resources such as computer equipment, bulletin boards, office supplies, and audio-visual equipment. Eric Stuart, Ogletree Deakins Nash Smoak & Stewart PC The decision is a major development and creates a host of potential liabilities for employers. Employers that have adopted business-use-only policies for their systems must consider rescinding or modifying that rule. It is expected that unions will likely file a wave of new unfair labor practice charges challenging employers existing policies that contain a business-use-only restriction. Likewise, employers that provide employees with access at work but that do not permit employee use during a representation campaign can expect to have the results of the election challenged by the union and overturned by the board. Steven M. Swirsky, Epstein Becker Green It is a major game changer. Although the majority writes that employers may justify a total ban on the use of , including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline, and that uniform and consistently enforced controls may be imposed for such purposes, a great deal of litigation is likely and given the board s endorsement of as the most fundamental form of communication among employees, it is likely that employers that seek to adopt and enforce such restrictions will have to meet a very steep burden to prove the existence of such special circumstances. Add to this the board s acknowledgement that employers who chose to impose a working-time limitation will have concerns about the extent to which they may monitor employees use to enforce that limitation, and you can quickly see the types of unfair labor practice charges and litigation that employers will be faced with as they struggle to enforce policies against disclosure of confidential information and inappropriate content. David Urban, Liebert Cassidy Whitmore Our firm specializes in representing public employers, including police and fire departments, cities and counties, and school districts, all of which are bound by the First Amendment. As such, they cannot improperly censor employee speech without infringing the U.S. Constitution. By contrast, the private

6 sector is not bound by the First Amendment. From our perspective, Purple Communications is making the private sector workplace look very much like the public sector. The statute at issue in Purple Communications, Section 7 of the NLRA, applies to practically all private sector employees, regardless of whether they have a union. The decision also applies to an enormous segment of the private sector, because it expands employee free speech rights in a ubiquitous feature of the 21st century workplace systems. Through its decision today, the NLRB continues to forge Section 7 of the NLRA into a broadly applicable First Amendment for private sector workers. Christopher Ward, Foley & Lardner LLP The immediate significance is that unions have an incredibly effective tool to advance organizing, and employees can now easily bounce union s around. It s not hard to imagine incendiary s circulating and sowing workplace discord. There are also latent consequences. Many employers monitor their systems, which could lead to claims of surveillance of protected concerted activity. Such activity can now occur at the touch of a button, making it difficult for an employer to claim no knowledge of union activity in the event of a challenged disciplinary decision. We may only be scratching the surface of the potential ramifications. Thomas H. Wilson, Vinson & Elkins LLP Employers who have non-union workforces who are likely subject to union organization, and which have access to the employer s system, need to consider removing rules that limit use of those systems or risk this issue, which may require a re-run of a union election in which the employer had prevailed. Employers who reserve the right to view any on their systems need to create guidelines as to what their ordinary course will be in terms of when and how such review will be done or risk surveillance charges. Edward R. Young, Baker Donelson Bearman Caldwell & Berkowitz PC The NLRB decision in Register Guard tracks the D.C. Circuit s decision denying enforcement of the Bush board s prior NLRB decision in the same case. In that case, the circuit court said, in denying enforcement, that employees had a right to use company supplied computers for union related communications through s. The original Bush NLRB decision found nothing wrong with Register Guard s restriction on that use of company computers. I view today s decision as akin to no-solicitation rules. Notwithstanding an employer s attempt to strictly enforce such a rule, employees will be able to give examples of times when, with management s knowledge, the rule has been violated without any discipline being taken. Trying to enforce a rule restricting use of company computers to business related matters is just as difficult to enforce. --Editing by Emily Kokoll. All Content , Portfolio Media, Inc.