Discussing Job Security is a Protected Activity, NLRB Finds

The NLRB found that an employer violated Section 7 of the NLRA when it fired an employee for discussing job security with a co-worker.

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A vending-machine route driver left work early one Friday without notifying management, which is a violation of company policy. That weekend, she noticed a local ‘help wanted’ ad for a vending-machine route driver. She assumed it was her company that had placed the ad and that she was going to be fired.

When she returned to work the following Monday, she and another route driver discussed the ad. She asked her co-worker if he thought the ad meant their company was going to fire someone, but the co-worker thought she was implying he was going to be fired. The second driver went to the owners of the company and expressed his concern about losing his job.

The owner assured him that he would not be fired and asked why he was worried. The other route driver mentioned his conversation about the ‘help wanted’ ad. The company eventually fired the first driver – the one who ducked out of work on Friday – for gossiping and telling other employees they were going to be fired.

The NLRB Steps In

In a 2-1 majority ruling, the NLRB found that the driver’s termination violated the National Labor Relations Act (NLRA) because discussion of job security concerns with her co-worker were “inherently concerted,” and therefore considered protected concerted activity, even though there wasn’t any evidence that they were “engaged in with the express object of inducing group action.”

Conversations among employees are generally protected when they consider group action. However, the contemplation of group action is not required when the conversation is “inherently concerted.” Since job security discussions, like wages, are a vital conditions of employment, the NLRB held that they are inherently concerted.

The company was ordered to reinstate the driver with full back pay.

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Can Employees Talk About Their Pay?


Protected Concerted Activity and Section 7 of the NLRA

Section 7 of the NLRA protects employees who engage in concerted activity for the purpose of mutual aid or protection. Section 8 of that Act makes it unlawful for an employer to “interfere with, restrain, or coerce” an employee for engaging in such activity.

What Does This Mean For Employers?

Determining whether employee activity is protected under the NLRA ultimately depends on the specific facts of each case. However, it is clear from recent NLRB rulings that taking corrective action based on work-related conversations among employees can lead to trouble with the NLRB.

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Federal Contractors: Posting Requirement Stands

A challenge opposing a pro-union workplace posting lost in U.S. District Court.

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President Obama issued Executive Order 13496 in 2009, which prompted the U.S. Department of Labor to release a new workplace posting for Federal contractors, Employee Rights Under the National Labor Relations Act. The posting reminds employees of contractors with contracts from the Federal government valued at $100,000 or more that they have the right to organize a union and use collective bargaining.

Two groups representing Federal contractors took the posting and its rule to court and lost.

The National Association of Manufacturers and Virginia Manufacturers Association argued that the regulations compelled speech in violation of the First Amendment and that the President and Department of Labor lacked the authority to issue the rule (Civil No. 1:13-cv-01998).

On the first charge, the trade group representatives argued that employers would be forced to communicate a pro-union message to workers, even if participating companies held other opinions about unions. The Court, however, determined that:

“…the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting.”

Government contractors and subcontractors involved in Federal contracts valued at $100,000 or more are required to post the notice:

“…in conspicuous places in and about [their] plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically.” [29 C.F.R. § 471, Subpt. A, App. A.]

Contractors covered by the rule who fail to display the posting risk having their contracts with Federal agencies cancelled.

Employers may recall the NLRB posting debacle of 2011 wherein the Board tried issuing a posting required for U.S. employers. Two different Courts ruled they lacked both the authority to issue posting requirements and the power of enforcement.

In the more recent case of E.O. 13496, however, the combined authority of President Obama and the DOL make for power only the Wonder Twins could dream of.

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Can Employees Use Work Email Off Duty?

Can workers use their company’s email system off the clock for non-work purposes? Yes, under certain circumstances according to the NLRB.

The National Labor Relations Board (NLRB) decided that employees are able to use their employers’ email systems to communicate with co-workers about specific types of workplace issues while “off the clock”.

The NLRB decision applies only to employees who have already been granted access to the employer’s email system as part of their normal work duties, and it does not require employers to provide new access to an email system.

The Case for Employee Emails “Off the Clock”

Purple Communications’ employee handbook stated that employees are strictly prohibited from using company email to participate in activities for non-business purposes, and that didn’t sit well with the Communications Workers of America (CWA). The CWA filed an unfair labor practice charge with the NLRB during a union-organizing campaign challenging the policy.

The NLRB ruled in favor of the CWA, saying the employee handbook infringed on the NLRA’s allowance for protected concerted activity by workers.

The rule takes effect in April 2015, but will be applied retroactively. Employers with a policy prohibiting the use of company email system for non-business matters should revise their handbooks to comply with this ruling.

Protected Employee Email Content

The NLRB enforces the National Labor Relations Act (NLRA). Section 7 of the NLRA 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.”

Under Section 7, emails between workers communicating self-organization and other workplace and employment conditions are considered protected concerted activity even when employees are “off duty” and using the company email system. (The NLRB recognizes work breaks and meal times as ‘off the clock’ time.)

One exception to the NLRB decision – the “nuclear option” – permits employers to enforce a total ban on all emails during nonworking time to protect its email system from damage or from overloads due to excessive use, whether the communication is related to Section 7 activities or not. Additionally employers can monitor for misuse and negative effects on productivity; however the NLRB decision noted that employees who are off-duty are not expected to be productive during nonworking hours.

The nuclear option presents several risks, including damage to morale and workplace culture, but it also requires strict monitoring and a zero-tolerance implementation so as not to appear to target Section 7 emails.

The NLRB decision comes during a trend toward increased email usage in the workplace across job functions and an increase in the number of remote workers. The Board states that “email’s effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication.”

Protected Concerted Activity

Protected Concerted Activity is defined as “a legal term used in labor policy to define employee protection against employer retaliation. It is a legal principle under the subject of the freedom of association.” For example, when two or more employees talk to their employer about wages, benefits, working conditions or other conditions of their employment they are engaged in protected concerted activity. An individual employee may also engage in protected concerted activity if (s)he is speaking up for a group of employees.

Can Workers Send Personal Email at Work?

Many employers claim their workplace cultures help employees achieve a work/life balance, but what happens when the edges between work and personal life blur? Should workers have unrestricted access to their personal email, social media, and phone calls that aren’t work-related using company computers and phones?

The General Counsel for the National Labor Relations Board (NLRB) argued that a company’s prohibition of personal communication (email and phone calls) on business computers and phone lines was in violation of Section 8(a)(1) of the National Relations Act (NLRA), which protects workers’ rights to protected concerted activity. Counsel argued that employees should be allowed to communicate freely within their workplace about employment conditions, and that company-owned equipment and systems were readily accessible avenues for employee protected concerted activity.

An NLRB Administrative Law Judge dismissed a claim that employers should be prohibited from restricting their employees’ usage of company-owned equipment and systems to send personal communications.

The company in question, Purple Communications, had developed language in their employee handbook prohibiting personal use of company-supplied computers, internet, voicemail, email, and cell phones.

All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only…Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other company equipment in connection with any of the following activities:

  • Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company.
  • Sending uninvited email of a personal nature.

The Employer is authorized to punish an employee’s violation of this policy with discipline up to and including termination.

Overly Broad Policies Are No-Go’s for the NLRB

In the same decision, the NLRB ruled the employer’s rule prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” violates Section 8(a)(1) of the Act because it sets forth an overly broad restriction that interferes with the Section 7 rights of employees to engage in union and/or protected concerted activity.

Care to Share with the NLRB?

The NLRB is looking for feedback about whether employers should allow communications considered protected concerted activity and protected under the NLRA. Specifically, they want answers to the following:

  1. Should the Board reconsider its conclusion that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?

  5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The NLRB is accepting briefs of 25 pages or less through June 16, 2014 and responsive briefs until June 30, 2014, either of which can be submitted electronically.