A Win For Employers: NLRB Paves the Way For Policies
Limiting Employee Use of Employer-Owned Email
Systems
By Paula Walker and Kristy Offitt
In the modern technology age, employers often adopt, without consistently enforcing, policies restricting employee use of company electronic mail in some manner. The National Labor Relations Board (NLRB) recently reviewed an employer's policy that prohibited personal use of a company email system to determine if the policy violated an employee's rights under Section 7 of the National Labor Relations Act (the Act). The NLRB held that employees have no right to use an employer-owned system to communicate non-work related, union-related emails. This ruling paves the way for employer email policies that prohibit use of the employer-owned email systems for personal, non-work-related emails. In other words, employers can prohibit email solicitations for the annual Girl Scout cookie sale, Avon, local theater productions, church fundraisers, and announcements of the next union organizing meeting. The NLRB noted that the Act protects the employee's right to organize, not use of a particular means of communication to do so. Even though the email system may be off limits, that employees can still engage in face-to-face oral solicitation on non-working time.
In a surprising break with past decisions, the NLRB established a new standard for determining if an employer unlawfully discriminates in the application of its email policy. In order to be unlawful, discrimination must consist of "disparate treatment of activities or communications of a similar character because of their union or other Section 7 protected status." By way of example, the NLRB noted that an employer would clearly violate the law by allowing employee emails soliciting for one union but not another, or by allowing email solicitation by anti-union employees but not pro-union employees. Employers will not discriminate with policies that allow charitable solicitations but prohibit non-charitable solicitations, allow emails for personal sales (such as yard sales or other personal items for sale) but prohibit emails for commercial sales, or allow personal invitations but prohibit organizational invitations. The fact that union solicitation would fall in the prohibited category does not constitute unlawful discrimination.
The NLRB's application of this new standard highlights the importance of a carefully crafted and uniformly applied policy. Employers need to:
1. determine if they want to regulate use of the employer-owned email system
2. specify the type and nature of prohibited emails
3. consistently enforce any email policy
RESPECT or War - Current Legislative Activity
Organized Labor's Attack on the Healthcare Industry
By Sneha Channabasappa
Congress has introduced legislation, that would expand the number of nurses who qualify as supervisors by redefining "supervisor" in an effort to overturn a 2006 NLRB decision. Although a fight over the definition of "supervisor" under the National Labor Relations Act (the Act) may seem like a minor battle, it is critical because supervisors are ineligible for union membership. (For more information on the NLRB's Oakwood Healthcare Inc. decision, see this link
Far from creating a consistent standard for the definition of "supervisor", Oakwood Healthcare was a call to arms for organized labor. Big labor was able to influence Congress to introduce an amendment to the Act entitled Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers ("RESPECT") Act. (S. 969, H.R. 1644).
The RESPECT Act would make several significant changes to the definition of "supervisor." First, the RESPECT Act calls for deleting from the list of supervisory functions the terms "assign" and "responsibly to direct," meaning that employees who assign and direct work in many cases would no longer be considered supervisors. It also would require that the individual spend the majority of his or her time performing the remaining supervisory functions set out in the Act.
If passed, the RESPECT Act would include as supervisors only those employees who spend the majority of their work time performing any of the remaining 10 essential supervisory functions, effectively permitting organization of an entire class of workers formerly exempt from coverage. For instance, charge nurses who primarily direct staff and assign tasks, but who may not engage in other supervisory functions (such as hiring, demoting, and transferring), or who only engage in supervisory functions for 40 percent of their time while providing care 60 percent of the time, would now be eligible for union membership and could engage in protected concerted activity if the RESPECT Act passes. The end result would be a new class of union-covered employees, potential chaos for existing relationships and increased union activity in the workplace.
The RESPECT Act is one of many examples of organized labor's focus on the healthcare industry. Organized labor is actively pursuing this and other legislative initiatives in an effort to increase the number of unionized healthcare facilities. For example, The Employees' Free Choice Act of 2007 passed the House of Representatives but stalled in the Senate. If passed, the Employees' Free Choice Act would have allowed certification of a union as employees' representative upon the union presenting signed union cards from a majority of employees, rather than through a secret ballot election conducted by the NLRB. In addition, it would have allowed a panel of arbitrators to decide the terms of the parties' first collective bargaining agreement if the parties were unable to agree. Organized labor also supports legislation mandating staffing ratios and limits on overtime. Healthcare employers can work through their trade associations to combat the ongoing wave of legislative activity aimed at the industry. See e.g. American Hospital Association or American Society for Healthcare Human Resources Administration.
Expansion of the ADA
By Kristy Offitt
In another move to respond to the effect of court decisions, Congress is currently considering the ADA Restoration Act of 2007 (S. 1881/H.R. 3195). Proponents urge that the amendment is necessary to carry out the intent of the ADA in an environment where court decisions have narrowed the individuals protected by the ADA. Currently, in order to qualify for protection under the ADA, a person must establish that their disability "substantially limits" them in performing a "major life activity" when measured in its mitigated state. For example, where the use of a hearing aid or glasses significantly reduces the limitations of a disability, a person may not be eligible for protection under the ADA. Under the Restoration Act, however, the "substantial limitation" on a "major life activity" requirement would be eliminated and courts would be prohibited from considering whether a person uses mitigating measures. If passed, the legislation would significantly broaden the number of individual's considered "disabled" under the ADA likely resulting in more requests for accommodation and more litigation.
Expanding Non-Discrimination to Include Sexual Orientation
The Employment Non-Discrimination Act of 2007 (ENDA) (H.R. 2015) would add sexual orientation to the list of categories protected by federal anti-discrimination laws. Congress is moving forward with this version of ENDA rather than a separate bill which would have included sexual identity as an additional basis for protection. The President has promised to veto ENDA if it is passed the House and the Senate.
You can track the current status of these pending bills at http://thomas.loc.gov by using the bill numbers identified above.
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