Goodbye Precedent, Hello Forced Speech?

The NLRB continues to push for a share of the employment law spotlight.  It also continues to act in a way that shows why its “precedent” is truly only “precedent” when the political winds don’t change.

In 2007, during a Republican administration in Washington, the NLRB determined that “employees have no statutory right to use the employer’s e-mail system for Section 7 purposes.”  You’ll remember that “Section 7 purposes” means your employees’ right to engage in “protected concerted activity.”  Activities like collectively discussing gripes about an employer’s compensation system or hazardous working conditions, or attempts by employees to unionize an otherwise non-union facility.

Technology, and social media in particular, allows employees to engage in protected concerted activity much easier and more quickly.  But it is one thing to allow employees to collectively act on their own time when they’re not supposed to be working.  Do companies have to open up their company-owned communications systems to make it easier for employees to engage in those activities, especially when such activities are antithetical to the company’s interests?   In 2007, the NLRB said “no.”

But here we go again with the now-Democratic controlled Board.   In California, an Administrative Law Judge recently applied the NLRB’s 2007 decision to dismiss an allegation that the employer committed an unfair labor practice by prohibiting the use of company e-mail and equipment for anything but business purposes.   However, the NLRB’s General Counsel immediately stepped in and filed exceptions to that ruling, and urged the NLRB to overrule its 2007 “precedent” and instead adopt a new rule requiringcompanies to treat non-business concerted activity the same as it treats business activity.   That is, if a company provides a system for employees to communicate over e-mail for business purposes, it must similarly allow employees to communicate over the company’s e-mail system for such non-business purposes as attempting to unionize.

Last week (May 1st), the NLRB invited interested individuals and organizations to file briefs on the issue, and offer the Board reasons why its 2007 “precedent” should be overruled or remain in place.  Briefs must be filed with the NLRB in Washington, DC by June 6, 2014.   What say you?

Employer Take Away:   What should you as an employer take away from this development?

Interestingly, the NLRB’s other, recent attempt to force employers to act as conduits for employees to engage in certain activities was met with fierce opposition, and was ultimately rejected in court.  Remember the NLRB’s attempt to force employers to post notices explaining how employees have the right to unionize?

This latest initiative to overrule a 2007 pro-employer decision seems like another attempt to effectively impose forced speech on employers.   It might not be forcing substantive content, but at a minimum it’s forcing employers to act as the conduit to getting certain speech out.  The bigger question, though, when it comes to the possibility of the NLRB doing an about-face on its 2007 decision:  How can companies rely on precedent to create and implement policies and practices, if precedent depends on who’s President?

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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