Tuesday, June 30, 2015
Today, the Supreme Court granted cert. in Friedrich's v. Cal. Teacher's Association. The issues presented are
(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
I'm sure I'll get disagreement on this point, but I think issue 1 isn't going anywhere. The Court took a shot at Abood in Harris v. Quinn, but clearly didn't have five votes. Far more likely is issue 2, with the Court probably holding that public-sector unions must use an opt-in system for dues, rather than the current opt-out rule. I've never been sympathetic to the view that the Constitution mandates opt-in over opt-out, but the Court has been dropping some big hints about going in the direction over the last few years.
Hat Tip: John Coyle
Wednesday, June 17, 2015
David Schwartz (NLRB, writing on his own behalf) has just posted on SSRN his article, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, which is being published in the ABA Journal of Labor and Employment Law. The abstract:
This article discusses the relevance of the Supreme Court’s Hobby Lobby decision in relation to the National Labor Relations Act (NLRA). Writing as an individual and not on behalf of the NLRB, Mr. Schwartz reviews the broad issue of employment law in religious settings and the development of the NLRA’s religious exemption. He suggests a standard for application of the Board’s religious exemption designed to achieve an appropriate balance of the competing interests between employer's religious rights and employees' regulatory protections.
It's great to see someone address this issue. I've already been introducing Hobby Lobby in my labor law (and other courses), although it's hard to predict exactly how much it's going to impact those areas. But with Hobby Lobby and the NLRB's new Pacific Lutheran standard, the issue of religion and labor law will be quite interesting.
Monday, June 1, 2015
The Supreme Court issued its decision in EEOC v. Abercrombie today. As a reminder, this is the case in which a female job applicant (Samantha Elauf) who wore a head scarf was rejected for a job because it conflicted with company dress policy. The employer argued that there was no religious accommodation claim available unless the applicant or employee specifically noted the need for such accommodation (in other words, there was no religious discrimination because she didn't say the head scarf was for religious reasons and, as a result, the employer didn't need to see if there was a reasonable accommodation). The Court rejected that argument in a decision joined by 7 Justices, with Alito concurring and Thomas concurring in part and dissenting in part. From the syllabus:
To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.
The Court made clear that Title VII was only concerned with whether religion was a motive, no matter what the employer's knowledge was. Although that seems a bit hard to distinguish, especially for juries, as in most cases, a plaintiff would have a hard time showing motive without knowledge (indeed, the Court recognizes in a footnote that it may be hard or impossible to show motive without some knowledge). That said, it does distinguish Title VII's religious accommodation from the ADA, which specifically refers to "known" limitations. For the case at hand, this means that even if Abercrombie did not know she wore the scarf for religious reasons, they will still violate Title VII if she can show that they refused to hire her in order to avoid making an accommodation. For instance, if Abercrombie suspected that this was a religious headscarf, but couldn't confirm it, the plaintiff could show that the desire not to accommodate was a motivating factor for the rejection.
Another important aspect of the decision is that the Court held that Title VII puts religion in a favored position. Rejected Abercrombie's argument that a neutral policy (dress code) couldn't be discriminatory, the Court stressed that employers must reasonably accommodate religious practices. What it didn't say though is that the reasonable accommodation duty is very narrow under previous cases. In other words, Elauf still has work to do to win this one.
Wednesday, April 29, 2015
Seth Harris, Distinguished Scholar at Cornell's ILR School, has just posted on SSRN his article, Managing for Social Change: Improving Labor Department Performance in a Partisan Era, which will appear in the West Virginia Law Review. The abstract:
I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting. That's right, it's about managerial performance measures and it was really interesting. Don't believe me? Read the article.
Sunday, April 26, 2015
The first of no doubt many updates on the legal wrangling of the NLRB's new election rules. In Baker v. NLRB, a D.C. district court judge has denied plaintiffs' motion for a temporary restraining order stopping enforcement of the new rules, which went into effect on April 14, 2015. Of particular note is the court's finding that the plaintiffs had not shown a likelihood of winning on the merits. This is far from the final word, but a nice first step for the NLRB.
For a description of the major changes in the new rules, and an argument that those changes are quite modest in scope and effect, see my recent article, NLRB Elections: Ambush or Anticlimax?.
Hat Tip: Patrick Kavanagh
Recently, in Buckeye Florida, the NLRB invited briefing on whether to overturn its precedent prohibiting unions from charging nonmember employees for grievance processing. This is an issue in right-to-work states because, under current NLRB law (H.O. Canfield Rubber Co.), a union has a duty to pursue nonmember grievances the same as member grievances, but can't require nonmembers to pay anything for the service.
Given all the recent attacks on union security agreements (requiring dues), this is one way the NLRB can respond. Expect major outcries if the NLRB decides to allow unions to charge for grievance processing. However, it's not that easy to defend the current precedent. That line of reasoning is that grievance processing is a central part of collective representation, which is certainly a reasonable legal argument given that right-to-work laws are legal. That said, this is one area in which the non-labor expert is likely to feel more sympathetic to the union, which merely has to argue something along the lines of "we shouldn't have to work for free."
Wednesday, April 8, 2015
News is out today that Sharon Block, former NLRB Member of Noel Canning fame, will be working at the White House. She will be a senior advisor for labor and working families at the White House Office of Public Engagement.
Great to hear that my former colleague at the NLRB has moved such an important position.
Hat Tip: Patrick Kavanagh
Monday, March 16, 2015
As we noted earlier, the UAW's attempt to organize graduate students at Columbia raised the potential for the NLRB reversing Brown University. As of Friday, that potential significantly increased. In two short decisions (I haven't been able to find them yet), the NLRB ordered a regional hearing on the UAW's petition to represent grad students at both Columbia and the New School. This procedural decision establishes a path for the NLRB to ultimately review whether the students are employees under the NLRA. Thus, these cases--in addition to the Northwestern University footballs players--means that we'll likely see a lot of collegiate student action at the Board for a while.
Sunday, March 1, 2015
- Blogger Emeritus Paul Secunda on recent developments on Gov. Walker's attempts to turn Wisconsin into a right-to-work state. It looks like it will happen soon.
- Speaking of right-to-work, Illinois' new Governor is unleashing a similar attack on public-sector workers through an executive action that has some questions about its legality.
- Early word on the Abercrombie & Fitch oral argument looks favorable for the plaintiff. Stay tuned.
- The Senate HELP committee held a hearing on the NLRB's election rules recently. Critics argue that the rules create "ambush" elections--I've argued in a recent article that the rules are pretty modest and far from creating ambush elections.
- The NLRB's recent Pacific Lutheran decision attracts attention from university adjuncts. Speaking of which, last Wed. was National Adjunct Walkout Day.
- Is a new challenge to the NLRB's Brown University case--finding that grad students are not employees--on the way? Following the settlement at NYU last year, developments at Columbia could ultimately threaten the Brown decision.
- The Fourth Circuit adds to a False Claims Act circuit split regarding the public disclosure bar. It's already been to the Supreme Court twice--maybe three times will be a charm.
- The Fourth Circuit also issued an interesting decision that deals with several SOX whistleblower issues, including exhaustion and available remedies.
- Wal-Mart raises wages for its lowest-paid workers (and Ann Hodges, Richmond, comments). The promise to improve scheduling may be as significant, if not more so. Other major companies are starting to follow suit with higher wages.
- Patricia Arquette makes a strong pro-gender equality push in her Oscar acceptance speech. See, we told you that labor and employment law was cool.
- It might be depressing for unions in the U.S., but in Canada, the right to strike is now constitutional. David Doorey explains.
Hat Tip: Jonathan Harkavy, Lynn Dancy Hirsch, Patrick Kavanagh
Bill Herbert (Hunter College) and Alicia McNally (New York State PERB) have just posted on SSRN their article, Just Cause Discipline for Social Networking in the New Gilded Age: Will the Law Look the Other Way?. The abstract:
We live and work in an era with the moniker of the New Gilded Age to describe the growth in societal income inequality. The designation is not limited to evidence of the growing gap in wealth distribution, but also the sharp rise in employment without security, including contingent and part-time work. This article examines the state of workplace procedural protections against discipline as they relate to employee use of social media in the New Gilded Age. In our times, reactions to the rapid distribution of troublesome electronic communications through social networking tend to eclipse patience for enforceable workplace procedures. The advent of social media and the decline of job security have created a perfect storm that raises the question of whether labor law will look the other way when it comes to the principles of workplace fairness and justice.
The article begins with President William McKinley’s introduction of the doctrine of just cause discipline into American labor law in 1897, during the Gilded Age, at the same time that the common law at-will doctrine was continuing to gestate. McKinley’s unilateral executive action established principles that remain the cornerstone of just cause discipline: proper notice, a fair evidentiary investigation, an opportunity to be heard, and nondiscriminatory treatment. The article then turns to the development of just cause standards in the 20th Century, which added other elements such as notice of workplace policies and the use of progressive discipline. Lastly, the article examines how just cause principles should be applied to allegations of electronic misconduct in the New Gilded Age to ensure reasonable and prudent disciplinary results, employee acceptance of adverse employment decisions, and a decreased likelihood of litigated claims of unlawful discrimination.
I'll confess that I was totally unaware of McKinley's action. Learn about that move and the intersection of just cause and technology in this interesting article.
The National Center for the Study of Collective Bargaining in Higher Education's newest edition of the Journal of Collective Bargaining in the Academy is out. The peer-reviewed journal's latest includes the following articles:
- The Impact of Unionization on University Performance by Mark Cassell and Odeh Halaseh;
- Post-Recession CBAs: A Study of Wage Increases in the Agreements of Four State-wide Faculty Unions by Steve Hicks; and
- Academic Collective Bargaining: Patterns and Trends by Curtis R. Sproul, Neil Bucklew, and Jeffery D. Houghton.
Check it out!
Saturday, February 7, 2015
As readers know, the NLRB's General Counsel is pursuing an action against McDonald's that, along with its opinion in the Roundy's case, would somewhat expand the concept of joint employment under the NLRA. (Note that this article, which is otherwise good, mistakenly states that the NLRB has decided the issue.) It's actually unclear to me how significant the GC's analysis would be in practice, but it's clearly a change in a direction that employers don't like. As a result, the Senate recently held a hearing on the issue (there's a similar on the new representation rules that I'll post on once they happen later in the month).
Our emeritus blogger, Paul Secunda was one of the witnesses and seemed to do quite well). There are obviously arguments about where the line between single and joint employment should be, but I think the GC is reasonably concerned about having their cake and eating it too (or Big Macs). In other words, if corporations want more control over the employment practices of its franchises, it needs to take responsibility as well.
Monday, February 2, 2015
Last week, the Supreme Court decided two labor and employment cases. In one, M&G Polymers, a unanimous Supreme Court held that courts should apply ordinary contract principles when deciding whether health-care benefits survive the expiration of a collective-bargaining agreement. This holding reversed the Sixth Circuit's Yard-Man presumption that CBAs intend these benefits to vest for life. The Court remanded for the CBA to be interpreted by "ordinary contract principles," but ominously noted that "when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life." This stance seemed to be a primary motivation for a four-Justice concurrence (the more liberal Justices). The concurrence stressed that courts should be open to interpreting a CBA to intend vesting of retirees' health benefits, albeit without the Yard-Man "thumb on the scale." The impact of M&G Polymers will depend on how courts apply the decision, so we'll have to wait and see.
In the other decision, Department of Homeland Security v. MacLean, the Court held (7-2, with Justices Sotomayor and Kennedy dissenting) that a TSA regulation did not eliminate whistleblower protection. At issue was a provision in the federal whistleblower statute that makes an exception for disclosures "specifically prohibited by law." In MacLean, the Court held that Congress intended this provision to apply to statutes, but not agency regulations (e.g., elsewhere in the statute, Congress used the phrase "law, rule, or regulation"). The dissenters largely agreed with the majority, but thought the exception was satisfied by the Homeland Security Act's mandate that the TSA prescribe regulations to prevent disclosure of certain information. This case is certainly a win for federal whistleblowers and will require Congress to be more proactive if it wants exceptions for certain whistleblower disclosures.
Friday, January 16, 2015
Today, the White House announced a set of new initiatives to expand paid family leave. Among the plans:
- Healthy Families Act: proposed legislation that would require employers to allow employees to earn up to 7 days of paid sick leave per year.
- A start-up fund to help states create their own paid leave plans for their employees.
- Improved data collection through the Department of Labor.
- Proposed legislation to create paid parental leave for federal employees.
- Expanding coverage of FMLA.
- Expanding tax credits and federal funding for child care costs.
- Increased funding for family care for elderly and disabled family members.
- Improving enforcement of equal pay laws
This is an aggressive set of proposals, some of which are obvious nonstarters in the current Congress. It's nice to see the President bringing attention to the issue though; however, I'd like more emphasis in the press on the limits of the FMLA that currently exists. For instance, few people seem to realize that it only applies to employers with 50 or more employees.
Tuesday, January 13, 2015
The Supreme Court heard oral argument today in Mach Mining v. EEOC, which you might remember from some of our prior posts (also here) and a guest post by Commissioner Feldblum. The transcript has been posted on the Supreme Court's website, and you can read it here. The case was about the EEOC's concilation process and whether that process is judicially reviewable.
I've read through and have some initial impressions. Even though the EEOC is the respondent here, I'm going to start with its arguments because there was significantly more back and forth with the Justices and the EEOC than with the Justices and counsel for the employer, Tom Goldstein. The EEOC has taken an understandable but difficult position, that it cannot file suit unless it has tried and been unable to conciliate on terms it desires. The EEOC asserted that it had a duty to attempt to conciliate, but that essentially, as long as it sent a letter to the employer notifying it that the EEOC had found cause to believe discrimination had occurred in connection with the charge and asking the employer to get in touch, that duty was satisfied. Counsel for the EEOC conceded that this did not seem to be much for judicial review, but argued that even in courts that used a minimal good faith standard, those courts were getting bogged down in mini-trials attempting to assess the quality of the conciliation efforts, something the statute provides no sort of standards for, since the statutory language gives the EEOC has the sole discretion to decide whether any potential terms of resolution are acceptable to it. Counsel for the EEOC was pressed repeatedly to articulate what should be required to ensure that the EEOC actually attempted to conciliate. Chief Justice Roberts, especially was wary of trusting the word of the agency that it had acted in good faith, and Justice Breyer was as well, although to a lesser degree.
With counsel for the employer, the Justices focused primarily on how to frame the issue as a matter of administrative law, since the statute contains no standards for review, nor does it define this conduct as a final agency action. Additionally, the statute requires that the EEOC keep conciliation matters secret and prohibits information about the conciliation process to be used as evidence at trial.
In terms of Supreme Court bingo, predicting how the Justices will vote, I feel fairly confident that Chief Justice Roberts would vote to overturn the Seventh Circuit. I also feel fairly confident that Justices Ginsburg, Sotomayor, and Kagan are more sympathetic to the EEOC's position but might be willing to create some kind of standard more than what the Seventh Circuit required. Justice Kennedy questioned the employer's counsel pretty heavily, and Justice Breyer and Justice Scalia did the same for both sides.
One last observation. Developing a specialty in Supreme Court litigation will make you one smooth advocate. As a former appellate advocate, I have to say that Tom Goldstein (of Goldstein & Russell also founder of SCOTUSblog)'s argument was incredible to read.
Monday, January 12, 2015
Thirteen former United Airlines (UAL) flight attendants say they were improperly fired last year after refusing to work on a Boeing Co. (BA) 747 jumbo jet that had “menacing” images drawn below its tail.
The attendants say they had a right to disobey orders to make the July 14 San Francisco-to-Hong Kong trip after the words “bye bye” were found written in an oil slick on the fuselage, according to a complaint to the U.S. Occupational Health and Safety Administration. Two faces, one smiling and one “devilish,” were drawn nearby, according to the complaint.
At issue is the extent to which the images represented a security risk, as alleged by the attendants. According to the complaint, the workers saw a “serious” threat, while United inspected an auxiliary power unit near the drawings, found nothing suspicious and trivialized the incident as a “joke.”
Friday, December 19, 2014
Big Day at NLRB: General Counsel Issues Joint-Employer Complaint Against McDonald's and NLRB Issues Decision Changing Religious and Faculty Exemption Doctrines
A couple of big NLRB actions today. In the first, and as expected, the General Counsel issued consolidated complaints against McDonald's, alleging that the company is a joint employer along with its franchisees and therefore liable for numerous unfair labor practices (some of which have already been found to be meritorious). This is likely part of the GC's push in Browning-Ferris to revise the joint-employer doctrine, as well as a more aggressive argument that corporate control over franchises warrants joint-employer status. As far as the practical effect for the Board's recent moves, this case and Browning-Ferris is unparalleled. As much as the religious and faculty issues today are interesting and email captures the public's attention (and mine), far more companies and employees could be impacted by changes to the joint-employer doctrine. So this is one well worth watching.
In the second issue today, the Pacific Lutheran decision, the NLRB is getting a lot of bang for its buck, as it is changing two doctrines. The first is a new Catholic Bishop analysis for determining when religious schools and faculty should be exempt from NLRB jurisdiction. Under the new Pacific Lutheran standard, the NLRB will only decline jurisdiction when a university or college shows that it "holds itself out as providing a religious educational environment" (a requirement adopted from the D.C. Circuit's Great Falls decision) and shows that "it holds out the petitioned-for faculty members as performing a religious function." This latter requirement means that faculty must perform a "specific role" in the creation or maintenance of the school's religious education, as shown by evidence that might include job descriptions, employment agreements, faculty handbooks, and statements by the university. This new standard is likely to decrease the number of schools that can enjoy the religion exemption, although it's not clear to me at this point how big that effect will be.
The second is a revision of the Yeshiva University standard for determining when university faculty are managerial employees exempt from NLRA coverage. The NLRB describes this revision as an attempt to provide more guidance and predictability for parties concerned about the application of Yeshiva. The analysis is focused on Yeshiva's requirement that managerial faculty have broad and substantial decision-making authority, which the Board attempts to capture with five categories of university decision-making. Three of the categories are deemed more important to the university as a whole ("primary"): academic programs, finances, and enrollment management. The other two categories are less important to the university as a whole ("secondary"): academic policy and personnel policy and decisions. When determining whether faculty have control over these decisions, the Board will look to the actual exercise of control or ability to effectively recommend decisions. The result seems like to expand the number of faculty who will be covered by the NLRA, but the extent to which that's true will have to wait for its application in more cases.
A busy and important day for the NLRB. But, I don't expect it to be the last such day this year.
Hat Tip: Patrick Kavanagh
Friday, December 12, 2014
Doesn't the NLRB know this is a busy week for me? First was yesterday's e-mail decision in Purple Communications. Today, the NLRB released new final rules to reform the representation process. As readers are well aware, this is Version 2.0 for the representation rulemaking process, which was initially caught up in challenges over NLRB member appointments. The NLRB decided to drop the rules rather than fight the challenge. Some commentators (ahem) thought that the critics should beware of what they ask for because the NLRB could come back with stronger rules. The Board proposed just such a set of rules in February. The Board has now adopted them in a final rule. I haven't had time to compare the proposed and final rules side-by-side, but they look substantially the same at first glance.
Although these rules are somewhat broader than the ones in 2011, I should note that they aren't a surprise, as they track the NLRB initial proposed rules in 2011, which the Board eased back on a bit in their final rules. The Board's information site on this year's rules has a very helpful chart comparing the old and new rules that you should definitely check out (but doesn't copy well on the blog). Instead, I am copying the Board's summaries of the changes below; the full set of final rules is here.
One final note. In spite of what critics will argue, these rules do not set up "ambush elections." Instead, the NLRB is proposing modest reforms to eliminate unwarranted delay in the election process, both before an election is run and appeals to a completed election. They are also doing basic modernization reforms, such as allowing electronic filing and including e-mail addresses in the Exclesior list, among other things. There will still be plenty of time for unions and employers to express their views on unionization and for employees to make an informed decision. There will just be somewhat less time for employers fight the union with captive-audience meetings and other aggressive tactics, some of which are illegal but difficult to remedy. Employers will still have time for those strategies, just not as much. The rules will also lessen the amount of time that employers can stall after a union wins an election--time that is often vital to a union trying to maintain support. Finally, many critics will be people who argued against card-check elections by waving the banner of fair secret-ballot elections. This is exactly what the Board is doing here by making the secret-ballot process fairer and lessening unnecessary delay.
Hat Tip: Patrick Kavanagh
Here's the summary:
Modernizing Board Procedures
Electronic Filing/Communications – Parties may file documents, such as petitions, electronically, rather than by fax or mail. Parties and the NLRB’s regional offices can transmit documents electronically, rather than using slower or more expensive forms of communications, such as mail or express delivery services.
Election Voter List – The employer must include available personal email addresses and phone numbers of voters on the voter list in order to permit non-employer parties to communicate with prospective voters about the upcoming election using modern forms of communication.
Streamlining Board Procedure and Reducing Unnecessary Litigation
Identifying Disputed Issues – The non-petitioning parties will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens. The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing. Litigation inconsistent with the positions taken by the parties will generally not be allowed.
Litigation of Eligibility and Inclusion Issues – Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.
Post Hearing Oral Argument and Briefs – All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will be allowed only if the regional director determines they are necessary.
Review of Regional Director Rulings – The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot. The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.
Review Standard for Post-election Issues – The Board will have the discretion to deny review of regional director post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings for many years.
Increasing Transparency and Standardizing Board Process
Earlier and more complete information to the parties – When the petitioner files its petition, it will be required to simultaneously serve a copy of the petition, along with a more detailed Agency description of representation case procedures and an Agency Statement of Position form, on all parties identified in its petition in order to provide them with the earliest possible notice of the filing of the petition and Board procedures for processing those petitions. NLRB regional offices will serve a Notice of Hearing and a Notice of Petition for Election (along with a copy of the petition, description of representation case procedures and the Statement of Position form) on all parties. The non-petitioning parties will be required to respond to the petition (generally the day before the hearing opens) by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition. As part of its Statement of Position, the employer will be required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations.
Earlier and more complete information to employees - The employer is required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two business days of the region’s service of the petition. The Notice of Election will provide prospective voters with more detailed information about the election and the voting process.
Scheduling of Hearings – Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties. Post-election hearings will generally open 14 days after objections are filed.
Thursday, December 11, 2014
With right to work on the agenda and in the public eye in Wisconsin, it only makes sense that Milwaukee's NPR affiliate WUWM would turn to Paul Secunda, our friend and blogger emeritus. Paul was a guest on "Lake Effect," with this introduction: "As a potential debate over right-to-work laws looms in Wisconsin, we get some historical perspective on such legislation, and more insight into the impact it could have on labor and politics in the Badger State." Follow the link to listen to the whole thing, or find just Paul's segment on this page. Nice work, Paul!
Today, the NLRB issued its 3-2 decision in Purple Communications, reversing Register-Guard. In Register-Guard, the Board concluded that employees had no right to e-mail communications that used employers' equipment or networks (including employer email addresses). This gave employers f almost total autonomy to ban workplace e-mails that involved NLRA-protected communications.
In Purple, the NLRB concludes that employees do have a Section 7 right to engage in e-mail communications at work, just like they have for written or oral communications at work under the Supreme Court's Republic Aviation case. As the Board noted, this result logically flows from Republic Aviation's holding that employer's real property interests cannot trump employees' NLRA right to engage in protected communications in the workplace--instead those interests must be balanced. The NLRB in Register-Guard distinguished Republic Aviation by relying on the fact that e-mail uses employers' personal, rather than real, property. However, as the Board acknowledged in Purple, that's backwards because personal property is entitled to less protection than real property. The Board also downplayed early cases making similar points for bulletin boards, telephones, and other personal property--none of which provided any substantive analysis of the issues involved.
The main rule in Purple is a Republic Aviation-based analysis, in which:
we will presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.
Some important points for this analysis. First, the Board did away with some aspects of Republic Aviation that doesn't fit e-mail well. In particular, the right to use e-mail is not based on whether it was made in a non-work area or whether it is a solicitation or distribution. This makes perfect sense, as neither distinction applies to electronic communications. In contrast, the rule is limited to non-work time. As the Board noted, this is going to require case-specific analyses. That shouldn't be too hard in most cases (e.g., if employees don't have work and non-work time delineated, the employer shouldn't be allowed to limit e-mail based on that distinction), but there will be some gray areas. Second, the presumption is limited to instances where employees already have access to employer e-mail. Third, the decision is limited to e-mail, but not other electronic communications. I find this odd, as the rationale of the decision should apply to texts and other similar electronic communications. But the Board was probably just trying to limit the holding's reach. Finally, the Board shed some light on how it will treat surveillance issues. This was a potentially big issue, but the Board took a fairly employer-friendly view by stating that as long as the employer monitors e-mail as it ordinarily would (e.g, it doesn't increase monitoring when a union is on the scene), it will be OK.
As many readers are aware, I've written a lot on this issue (including an amicus brief in Purple) and am quite pleased with the decision (if readers want more detail on these issues, you can see some of my earlier work here, here, and here). It could've gone further, but I think the Board issued a very sound decision that wisely tried not to go broader than it needed to. Although critics will say otherwise, the bottom line is that Purple is not a radical decision. Register-Guard was the aberration by flauting both Supreme Court and basic common law. In Purple, the Board merely reversed an error and extended well-established precedent to a mode of communication that isn't even that new anymore.