By Erin Kilgore
It has been a busy year for the National Labor Relations Board. Many employees celebrated Labor Day with a long weekend and a shorter work week. However, employers also must reflect on the NLRB’s recent activity and consider the impact of such activity on their policies and procedures. Of particular interest to employers, the NLRB’s recent actions included decisions and pronouncements related to the following:
- Employee use of employer e-mail systems: In its “Purple Communications” decision, the NLRB found that, if employers decide to give employees access to company e-mail systems, employers must also allow employees to use e-mail for statutorily-protected communications during non-working time. This includes e-mails among employees related to union organizing or joining together to bring grievances against the employer and marks a break from prior NLRB decisions. According to the NLRB, an employer e-mail system cannot be restricted to work matters, absent a showing of “special circumstances.” The decision did not apply to “any other electronic communications systems” other than e-mail. Therefore, at this time, “business use only” restrictions on the use of company telephones, instant messaging, and other messaging systems are outside the scope of the Purple Communications decision and are still lawful in the eyes of the NLRB. The NLRB also stressed that the decision did not prevent employers from monitoring their computer and e-mail systems for legitimate management and business reasons, such as ensuring productivity and preventing e-mail use for purposes of harassment or other activities that could give rise to employer liability.
- Scrutiny of Employee Handbooks: In 2015, the NLRB General Counsel issued a memorandum regarding the NLRB’s rulings related to many common employee handbook policies in non-unionized workplaces, including policies related to confidentiality, standards of conduct, social media, disparagement, communications with third-parties, and conflicts of interest. In many cases, the NLRB found the policies overbroad and unlawful because employees could “reasonably interpret” the policy or rule at issue to prohibit protected activity under the National Labor Relations Act. The General Counsel’s memorandum is consistent with the NLRB’s prior scrutiny of such policies and continues the NLRB’s trend of invalidating common employer policies.
- Joint Employers: The NLRB refined its standard for determining joint employer status. As the NLRB explained in a recent press release the Board found that two or more entities are joint employers of a single workforce if: (1) they are both employers within the meaning of the common law; and (2) they share or co-determine matters governing the essential terms and conditions of employment. In assessing whether an employer possesses sufficient control over employees to qualify as a “joint employer,” the NLRB will (among other factors) evaluate whether an employer has exercised control over the terms and conditions of employment indirectly through an intermediary or whether it reserved the authority to do so.
As employers look ahead to year-end, employers should review current employment policies, manuals, and handbooks in light of the NLRB’s (and the other federal agencies) flurry of activity in the past year and consider revising and updating their policies to ensure compliance with the NLRB’s rulings and guidance issued this year. Employers must also be mindful of the NLRB’s rulings in applying employment policies.