NLRB Rules Employees Have Right To Use Employer Email For Protected Concerted Activity 

January 14, 2015 - In case you missed it, a majority of the National Labor Relations Board ruled late last year that, under Section 7 of the National Labor Relations Act, employees presumptively have a right to access their employer’s email system for purposes of engaging in protected concerted activity.  Such protected concerted activity includes not only general communications about the terms and conditions of employment (hours, wages, etc.) but also communications about union organizing.  (The case before the Board arose in the context of an initial organizing campaign.)  For the moment, at least, there are several important limitations on the Board’s decision.

  • First, it applies only to employees (and, therefore, not to non-employee union representatives).
  • Second, it applies only to employees who have already been granted access to their employer's system for work purposes.
  • Third, it applies only to email and not to other forms of electronic communication.
  • Fourth, it applies only to nonworking time.

The Board also left open the possibility that an employer might be able to rebut the presumption of access by demonstrating “special circumstances” justifying a total ban on non-work email as necessary to maintain production or discipline.  The Board’s decision does not shed much light on what such “special circumstances” might look like, but it suggests that employers attempting to satisfy this standard will have a high bar to overcome. According to the majority, an employer will be required to demonstrate more than a theoretical connection between its legitimate business interests and any restriction on employee use of email for Section 7-protected communications.   An employer attempting to justify a ban will also likely be required to demonstrate that other employee use of email (i.e., non-Section 7 use) does not similarly impact the legitimate business interests being offered as justification for a ban.

Notably, the Board observed that it did not believe its ruling would interfere with an employer’s right to monitor employee email communications, provided that the employer “does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.”  

We regularly advise employers to inform employees that they monitor (or may monitor) email and other electronic communications and that employees should have no expectation of privacy in communications made using the employers’ equipment or systems.  The Board’s recent decision is yet another reason employers should be providing such a caution to employees.  Doing so may have the effect of dissuading at least some employee use; to the extent it doesn’t, it may help protect the employer from allegations of unlawful surveillance under the NLRA. Employers without an electronic equipment and systems policy – or whose policy may be out of date – may want to take this opportunity to prepare a new or revised policy in light of the NLRB’s decision.



Federal Court Of Appeals Affirms NLRB Ruling That Employer Confidentiality Policy Violated NLRA


April 2, 2014 - Late last month, the United States Court of Appeals for the Fifth Circuit affirmed a 2012 decision by the National Labor Relations Board holding that a non-union employer’s confidentiality policy violated the National Labor Relations Act. See Flex Frac Logistics, L.L.C. v. Nat’l Labor Relations Bd. (5th Cir. Mar. 24, 2014).


At issue in the case was an employee agreement that included the following confidentiality clause:


Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; [company] organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [company] records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.


An administrative law judge initially determined that the clause violated Section 8(a)(1) of the NLRA because employees could reasonably interpret it as restricting their exercise of statutorily protected rights. After the NLRB affirmed that decision, the employer appealed to the Fifth Circuit and lost.


The Fifth Circuit first declined to consider the employer’s constitutional challenge to the legitimacy of the NLRB’s ruling (on the theory that because the President’s interim appointments were invalid, the NLRB lacked a quorum at the time of the ruling), holding that the employer had waived that argument by failing to assert it in its initial briefing. Turning to the merits, the Fifth Circuit then agreed with the NLRB that the confidentiality clause was too broad. In particular, the court cited the language prohibiting employees from discussing “financial information, including costs” – agreeing with the NLRB that cost information “necessarily includes wages and thereby reinforces the likely inference that the rule proscribes wage discussion with outsiders.” The court also flagged the prohibition on discussing “personnel information.” The court rejected the employer’s argument that employees would understand that confidential personnel information did not include wage information.


This decision is just the most recent reminder that even non-union employers must take care when imposing confidentiality requirements on non-management employees. Even if there is no explicit prohibition on discussing wage information, if an employee could reasonably interpret a confidentiality clause to prohibit discussion of wage information (or other information about the terms and conditions of employment), the clause could result in an unfair labor practice charge.


Philadelphia Now Requires Reasonable Accommodation Of Pregnant Employees

February 12, 2014 - Employers in Philadelphia should be aware of a recent amendment to the City’s Fair Practices Ordinance requiring reasonable accommodation of pregnant employees. With the amendment’s passage, Philadelphia joins municipalities like New York City and states like Maryland and New Jersey in expanding the protections afforded to pregnant employees in the workplace.

Effective immediately, it is an unlawful employment practice for a Philadelphia employer to “fail to provide reasonable accommodations to the needs of an employee for her pregnancy, childbirth, or a related medical condition.” It is important to note that the Ordinance does not require that a pregnant employee have a condition that would be considered a disability in order to be entitled to accommodation. Rather, an employer is required to grant an employee reasonable accommodation upon request, unless the accommodation would cause an undue hardship for the employer.

Suggested “reasonable accommodations” include “restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.” This list is not exclusive, however, and other requested accommodations may be found reasonable under the Ordinance.

The burden of proving undue hardship rests with the employer. Under the Ordinance, factors that may bear on a determination of undue hardship include:

(a) The nature and cost of the accommodations;

(b) The overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer;

(c) The overall financial resources of the employer, including the size of the employer with respect to its number of employees and the number, type and location of its facilities; and

(d) The type of operation or operations of the employer, including “composition, structure and functions of the workforce, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.

Again, this list is not exclusive and other grounds for a finding of undue hardship may exist.

In addition, an employer who denies accommodation may assert the affirmative defense that the employee in question “could not, with reasonable accommodations, satisfy the requisites of the job.”

Finally, the ordinance requires that employers provide written notice to new and existing employees of their rights under the amendment in a “form and manner to be determined by the [Philadelphia Commission on Human Relations]” no later than April 20, 2014. At this time, the Commission has not issued an approved form of notice. Employers should be alert to this deadline, however. In the meantime, employers should also take steps to ensure that their human resources personnel and managers are familiar with the new law and, as necessary, to update existing employment policies.


Department of Labor Updates FMLA Definition of “Spouse”

August 22, 2013 - In light of the Supreme Court’s June 2013 decision in United States v. Windsor, holding Section 3 of the Defense of Marriage Act unconstitutional, the United States Department of Labor has issued updated guidance on the Family and Medical Leave Act. In its August 2013 revision of Fact Sheet #28F (Qualifying Reasons for Leave under the Family and Medical Leave Act), the Department now identifies a “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” In other words, the Department is taking the position that an eligible employee will qualify for FMLA to care for a same-sex spouse with a serious health condition if the employee resides in a state where the marriage is legally recognized. It remains to be seen whether the Department will further expand FMLA coverage for same-sex couples by modifying or eliminating this residency requirement.

Employers covered by the FMLA should take steps to ensure they remain compliant with the law, including educating human resources professionals and others responsible for administering the FMLA on the expansion of coverage, and updating FMLA forms and policies as necessary. 


NLRB Issues Advice On Investigation Confidentiality Policies

April 24, 2013 - Asked to opine on a provision in an employee Code of Conduct mandating confidentiality in internal investigations, the NLRB’s Office of the General Counsel determined that the rule was unlawfully overbroad because an employer “cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” (Jan. 29, 2013 Advice Memorandum, Verso Paper, Case 30-CA-089350.) Counsel’s office further explained that an employer must “show in each particular situation” and relying on “specific facts” that it has a “legitimate and substantial business justification” for confidentiality that outweighs employees’ Section 7 rights.  To that end, Counsel’s office advised that it would consider the following a permissible policy:

"[Employer] has a compelling interest in protecting the integrity of its investigations. In every    investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and           retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. [Employer] may decide in some circumstances that in order to achieve these objectives, [Employees] must maintain the investigation and [their] role in it in strict confidence. If [Employer] reasonably imposes such a requirement and [Employees] do not maintain confidentiality, [they] may be subject to disciplinary action up to and including termination."