The National Labor Relations Board’s (NLRB) Division of Advice (Advice), which provides guidance to the NRLB’s regional offices regarding difficult and novel issues, recently released an internal memo concerning employee online communications that should be cause for concern among employers. Specifically, Advice found that an employee engaged in protected activity by discussing COVID-19 safety concerns on a third-party messaging application that the employer required its employees to download and that the employer violated the National Labor Relations Act by restricting the employee from engaging in such discussion.
The employer involved in the case required employees to download the third-party app on their personal cell phones to check in and out of shifts, to communicate daily sales statistics, to relay leave-related messages, and for other work-related purposes. The app has a “group chat” function that employees and supervisors use to discuss work-related issues. The employee used the group chat to complain about COVID-19 safety concerns and “other negative items.” The employer removed the employee from the group chat and warned him against using the app to raise such concerns in the future, as well as informing him that employees “are not allowed to share workplace condition information without permission from [their] supervisor first.”
The company defended its conduct by relying on Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), in which the board ruled that employers possess broad authority to restrict employee communication via employer-provided email and other IT resources. Advice, however, rejected the employer’s argument because it found that the employer did not have a sufficient property interest in the free third-party group messaging feature to justify restricting the employee’s protected dialogue during nonwork time. Advice based its finding on three key facts: (1) the app was free to the public, (2) each employee downloaded it on their own personal cell phone and (3) the employer paid no fees in exchange for using it.
Notably, Advice did not consider persuasive the fact that the employer’s managers created the “group” within the free app’s digital platform and controlled who had access to the group. These actions alone did not confer sufficient property rights upon the employer to legitimize its actions. As such, the employer could not restrict the employee’s use of the app.
Ultimately, Advice’s decision here is no more than a precursor to the changes that lie ahead to existing board precedent, including the likely reversal of Caesars Entertainment. Therefore, while employers should be aware of their limitations on restricting employee communications via free third-party smartphone apps, the NLRB will likely issue a ruling in the near future that allows employees access to employer-owned email systems and software. Stay tuned.
- Although employers currently possess broad authority to restrict employee communication via employer-provided email and other IT resources, they do not necessarily have the power to restrict the use of third-party applications.
- Employers should review policies concerning employee communications with respect to employer email systems and other technology considering anticipated changes to NLRB law.