You’ve just finished your email, electronic communications, social media and/or BYOD policies for employees assuming, among other things, that you did not have to permit employees to use company-provided communication systems for nonwork-related purposes, such as to fulfill certain union-related purposes or other “protected concerted activities” under for Section 7 of the National Labor Relations Act. You might have been safe to assume that because since 2007, as our Labor Group reports, under the Register Guard decision, the National Labor Relations Board took the position that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” The Board is considering changing that position, however, and is inviting input on whether to do so. You will have to act fast if you want to influence this decision, our Government Affairs Group points out, as the deadline for doing so is June 16, 2014.
Over the past few years, more employers have begun to develop policies to address employee electronic communications. There are, of course, many issues an organization must consider when crafting such policies, regardless of whether those policies are directed at company-provided email, the movement to “bring your own device” or “BYOD,” activity in social media, or managing employees’ expectation of privacy when using company-provided systems. By no means an exhaustive list, these issues include cost, productivity, safeguarding personal/company confidential information, protecting trade secrets, avoiding impermissible endorsement of company products and services, eliminating harassment and discrimination on company systems, managing email volume, and record keeping and destruction.
Adding to this array of legal, compliance, technical, employee relations and other issues affecting e-communications by employees, the right of employees to use company-provided systems to advance a union’s purposes, among other types of protected concerted activity, could further complicate an increasingly challenging task for employers. For instance, many employers monitor company email for a variety of purposes, such as, protecting sensitive data from improper disclosure, customer service, compliance requirements, managing productivity, and protecting against discrimination. If the NLRB gets its way, employers will need to be much more careful in how it monitors its own systems, and perhaps decide whether and to what extent they should continue to monitor and how management responds to certain monitored communications that violate company policies.
One might ask whether this intrusion into company-owned equipment is even necessary given the ubiquity of personal devices and widespread internet and social media access. Consider one of the areas the Board seeks input on:
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?
Some may believe that a balance exists at this point seeing the wide spread adoption of communications technologies, together with the significant and expected growth of BYOD programs in more workplaces. We’ll just have to wait and see.