In the near future the National Labor Relations Board is expected to vote to allow unions access to employers’ email and communications systems.
In April the board sought comments from interested parties in the form of legal briefs because it is reconsidering a 2007 NLRB decision that employees do not have a statutory right to access an employer’s email system.
In the new proceeding the board sought comments on what sort of standards should be established for employee access to employer’s electronic communications systems.
NLRB also wants to know how employee personal electronic devices (such as cell phones and tablets), social media accounts, and/or personal email accounts figure into protected employee communications about work-related matters.
The board may allow employees to use employer-provided email accounts to engage in protected activities, such as organizing a strike or picketing to improve working conditions, attempting to form a union, and joining a union whether or not the union has been recognized by the employer.
Attorneys Christopher R. Coxson and Evan J. Shenkman of the law firm of Ogletree Deakins said this also could jeopardize employers’ right to monitor their own email systems to prohibit sexual harassment, ensure productivity, investigate code of conduct violations and police trade secret theft.
In addition, they believe employer electronic communication systems could face potential disruptive activities such as email blitzes intended to drown out work-related or other company email messages, and allow employees or unions to declare a work stoppage or engage in other coordinated, subversive tactics.
Coxson and Shenkman also warn that this could pave the way for a future NLRB decision to allow e-card signing to serve as a sufficient predicate for filing a petition for a union recognition election.
