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Employer’s email policy did not violate the National Labor Relations Act (NLRA) even though it allowed personal emails made for individual purposes but not those made on behalf of groups.
A newspaper lawfully disciplined an employee who was also a union president after she used her work email twice to ask coworkers to show support for the union during contract negotiations.
The decision by the National Labor Relations Board in this case is the first to hold conclusively that Section 7 of the NLRA does not give employees a statutory right to use their employer’s email system for union-related communications. Section 7 gives employees the right to band together to engage in activities concerning their terms and conditions of employment, such as the right to join a union or solicit others to join.
However, the Board found that employers have a property interest in their email systems, and, therefore, may establish work policies prohibiting the use of email for non-job-related solicitations without violating the NLRA. Such policies may not discriminate specifically against union-related solicitations.
In this case, the employer had a policy prohibiting employees from using company email for any sort of non-work-related solicitation on behalf of groups or organizations. It did allow individuals to send personal emails, such as those asking for babysitters, announcing births or offering baseball tickets for sale.
The Board found that the company’s email policy was fair and nondiscriminatory. It looked at the character of the email messages the employer did allow and found that the messages were quite different from the union-solicitation messages in that they were personal messages made on behalf of an individual. The company did not allow employees to solicit for nonunion organizations or any other types of commercial or charitable groups, and thus, it did not discriminate when it also banned the union messages.
This case is an important guide for employers that want to implement policies restricting employees’ use of workplace email for personal reasons. It makes clear that it may be legal for a policy to differentiate between personal emails concerning a single individual and those that solicit on behalf of a group. It is important for all employers to review their email policies in light of this decision.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70, (December 16, 2007)].
Employer violated valid Family and Medical Leave Act (FMLA) regulation when it failed to notify employee that time off for surgery would be counted as FMLA leave, resulting in prejudice to her rights.
A sheriff’s department employee who was demoted after missing work for knee surgery could keep all of a $16,000 jury verdict, because her employer failed to inform her that her absence would be counted under the FMLA.
The employee had taken FMLA leave on several previous occasions, leaving her with 55 hours of leave for the year when she scheduled her knee surgery. Her employer never informed her that it was counting the surgery leave under the FMLA or that she more than exhausted her leave by staying out of work for more than two months. When the plaintiff returned to work, her employer demoted her, explaining that it did not have to keep her prior job open after she exhausted her leave. She sued for a violation of the FMLA, arguing that a Department of Labor regulation required her employer to notify her that her leave was covered under the law.
The court agreed that the employer’s failure to give such notice violated the FMLA statute. It explained that the FMLA was intended to protect employees’ right to take leave, and the employer violated the law when its actions prejudiced that right. The court explained that there had to be actual prejudice to the employee’s rights; if the employer’s failure to give notice had not resulted in harm to the employee, then there would likely have not been a violation.
In this case however, the harm was plain. The plaintiff was not returned to her previous job after she returned from surgery, because her employer considered her to have been absent beyond the 12 weeks allowed by the statute. Instead, she was placed in a lower position and lost access to a government automobile. The employee presented evidence that she would have postponed her knee surgery if she had known the employer intended to count the leave as FMLA time off, given that she did not have enough leave remaining in her current FMLA year to cover the time she would need to recuperate.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see, Downey v. Strain, -- F.3d --, 2007 WL 4328487 (5th Cir. December 12, 2007)].
Public employee not protected by the First Amendment when he posted messages on his union’s Web site comparing his boss to Hitler.
A corrections officer who was fired after writing messages on a public union Web site comparing his superiors to Nazi officials and urging coworkers to disobey orders did not have free speech protection for his words, a federal court recently ruled. The decision relied on a recent Supreme Court case that held there must be a balance between the First Amendment rights of public employees and the right of public employers to maintain order in the workplace.
The employee had supported the opposition candidate in the most recent sheriff’s election and disagreed with some of the incumbent sheriff’s policies. For example, after calling in sick one day, he had discussions with several police captains during which he compared the captains to Nazi officials and told one captain that a number of them were “gonna get shot.” He was suspended for 30 days because of the statement, and while at home, posted a number of messages on his union’s public Web site. The messages compared the sheriff to Hitler and the deputies to Nazi officials. The message also stated that corrections officers who opposed the sheriff’s candidacy were being harassed much like the Jews had been treated in concentration camps. The messages urged other corrections officers to refuse to obey immoral orders from the sheriff.
The sheriff’s office fired the officer after a disciplinary hearing; he then filed a lawsuit contending that his employer was interfering with his right to free speech. The court explained that under Supreme Court precedent, there is a two-part test for determining when a public employee’s speech is protected by the First Amendment. First, the speech needs to be a matter of public concern. Second, the employer cannot have a justifiable reason for curtailing the employee’s speech.
In this case, the court found that the speech was a matter of public concern, because it related to allegations that the sheriff was basing personnel decisions on political affiliation instead of merit. However, the department had a good reason to fire the officer for his speech, because the speech went far beyond normal complaints about political patronage by encouraging employee insubordination similar to that shown by those who had resisted the Nazi regime. The postings mentioned bomb threats plotted against Hitler and clearly analogized the sheriff to that situation. Such speech created a substantial risk of disruption to the operation of the department, so it was not necessary for the employer to wait until disruption actually occurred to put a stop to the speech and punish the writer.
This case describes the balance between the right of public employees to speak out on matters of public concern and their employers’ right to control that speech enough to maintain order in the workplace.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Curran v. Cousins, -- F.3d --, 2007 WL 4247791 (1st Cir. December 5, 2007)].
Hospital required to bargain with nurses’ union over mandatory vaccination program.
A hospital that implemented a program requiring all healthcare workers to get yearly flu shots should have bargained with the union representing the hospital’s nurses about the program first, the Ninth Circuit recently held. The court agreed with an arbitrator, who had decided that the vaccination program, while admirable in its attempt to curtail the spread of influenza in the hospital, could not be implemented unilaterally by the employer.
The nurses were members of a union that was a party to a collective bargaining agreement (CBA) with the hospital. The CBA gave the employer the right to make decisions regarding such “management rights” as personnel changes; however, as federal labor law recognizes, the employer was required to bargain with the union on any issue affecting the terms and conditions of employment for the nurses.
The hospital had argued that it could better comply with state and federal infection-control regulations by requiring all its nurses to be vaccinated against the flu. Although the arbitrator agreed, he noted that the regulations did not mandate that all healthcare workers be vaccinated, and requiring the hospital to bargain over the vaccination program would not be incompatible with the regulations, in part because other hospitals without mandatory vaccination programs had no trouble complying with the state and federal infection-control regulations.
The arbitrator found -- and the court agreed -- that the issue of mandatory vaccinations for employees was not a matter of “management rights,” but instead concerned a term and condition of employment. Therefore, the hospital was obligated to bargain with the nurses’ union.
This case discusses the difference between employment changes unionized employers have the right to make on their own and those that can be implemented only after negotiations with the union.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Va. Mason Hosp. v. Wash. State Nurses Ass'n., -- F.3d --, 2007 WL 4463924 (9th Cir. December 21, 2007)].