The Limits on Employers’ Monitoring of Employees Online
Are you monitoring your employees’ social media correspondence? Before your surveillance continues, read about a recent decision by the National Labor Relations Board.
Are you monitoring your employees’ social media correspondence? A recent decision by the National Labor Relations Board (NLRB) reminds employers that surveillance of employees’ discussions within private social media groups violates applicable labor laws where the subject of those discussions concerns unionization.
If you think your business is too small for your employees to unionize—think again, and don’t skip over this article. By way of background, employee unions are most commonly understood as a way for employees to bargain with their employers for the purpose of protecting workers’ rights. The National Labor Relations Act of 1935 [the “Act”] guarantees employees’ rights to form unions and take collective action. The Act applies to all private employers engaged in interstate commerce—meaning that it covers most small businesses in the United States. Under the Act, two or more employees who “share a community of interest” can form a union.
Unionization is a protected activity under the Act, which means that employers cannot fire or discipline employees for attempting to unionize or exercise their other rights. Employers that do so run the risk of getting sued for employment discrimination and/or wrongful termination.
But can an employer monitor employees’ private correspondence regarding unionization on a social media platform? In a recent case against an employer called National Captioning Institute, Inc., the NLRB reminded employers that they generally cannot engage in this type of surveillance. Although this question is not necessarily a novel one, a review of the facts underlying the National Captioning Institute case may help employers understand what not to do when it comes to monitoring employee communications.
The key takeaway: Don’t do anything out of the ordinary to monitor employee correspondence.
The case that drew the line
National Captioning Institute (“NCI”) is a non-profit corporation that provides closed-captioning, subtitling, and other media services. In early 2016, the National Association of Broadcast Employees & Technicians—Communications Workers of America, AFL–CIO ( “the Union”), launched a campaign to unionize the employees at two of NCI’s offices.
Discovering the Union’s campaign
NCI discovered the campaign when it initially reviewed employee communications exchanged via its in-house chat platform. NCI’s president and chief operating officer, Jill Toschi, had a suspicion that two of NCI’s employees were planning on leaving the company to form a new enterprise intended to compete with NCI. Toschi’s review of in-house chat correspondence found no information regarding any plot to unfairly compete with the company—although it did uncover the Union’s campaign to organize NCI’s employees. Among other things, the employees’ in-house chat correspondence voiced support for the Union.
Later, once NCI was aware of the Union’s activities, an NCI employee, Crystal Anderson, reported to an NCI manager that another NCI employee had posted pro-Union articles on Facebook. Anderson later reported, at the request of the same NCI manager, that the Union was in contact with employees, and that a group of pro-Union employees had since formed a private, invitation-only Facebook group called “the VW Bus.” The NCI manager later asked Anderson to provide additional details regarding this Facebook group, and she promptly responded with the names of all the group’s administrators and members. The NCI manager then reported this information directly to Toschi. Thereafter, the NCI manager again contacted Anderson and asked her: (i) if she was still a member of the VW Bus group; (ii) if the group had met with the Union; and (iii) whether any of NCI’s supervisors were members of the group.
Anderson responded with a detailed message explaining the group’s activities, including that employees were preparing a response to a company-wide email previously circulated by Toschi critical of unionization. Ten NCI employees, including Mike Lukas, ultimately signed the employees’ response to Toschi’s email. The day after the employees sent their response, an NCI manager emailed Toschi regarding the “background on those who signed union letter.”
Unrelated actions lead to unlawful discipline
Notably, before the employees sent their response, Toschi announced over a conference call that NCI intended to close its Dallas office, but that its Dallas-area employees could submit applications for continued employment with NCI on a remote basis. Lukas attended the conference call remotely (on his day off) and put the conference call on speakerphone in the presence of his friend, a former NCI employee. After Toschi learned that the closure of the Dallas office had been disclosed to third parties, she circulated an email marked “Company Confidential” that instructed employees to not disclose the Dallas office closure to anyone outside of NCI.
Lukas was later disciplined for allowing a third party to listen to the conference call (which was only identified as confidential after the fact). But, importantly, he was not disciplined until after the employees sent their response to Toschi’s initial email regarding unionization. Later, Lukas applied for a full-time remote position with NCI in light of the closure of the Dallas office, but his application was denied. Ultimately, the NLRB found that NCI’s disciplinary action against Lukas, as well as its decision to not rehire him, were unlawful and that the timing of Lukas’s discipline supported a finding of antiunion animus.
The monitoring continues
Meanwhile, with Anderson’s assistance, NCI continued monitoring employees’ private communications on the VW Bus Facebook group. The Panel found that NCI engaged in unlawful surveillance of these communications in violation of Section 8(a)(1) of the Act when it “repeatedly solicited and received” reports from Anderson about the group’s membership and the messages posted there. The Panel reiterated that “an employer commits unlawful surveillance if it acts in a way that is out of the ordinary in order to observe union activity.” NCI argued that its surveillance of the VW Bus Facebook group was not unlawful because, according to NCI, it took no adverse employment actions based on the information that it obtained, and because the employees were not aware of the surveillance. The Panel rejected both arguments. First, the Panel noted that “out-of-the ordinary surveillance of union activity is itself an unfair labor practice; an adverse employment action is not required to make out a violation of the Act.” Rejecting NCI’s second argument, the Panel observed that at least one employee, Anderson, was aware of the surveillance.
The lesson for employers
This case and others like it serve as a reminder to employers that they should not go out of their way or otherwise do anything that could be considered “out of the ordinary” to monitor employee communications discussing unionization, which is a protected activity under the Act.
If you have questions about whether and the extent to which your practices involving the surveillance of employee communications are lawful, then you should contact an attorney licensed to practice in your jurisdiction. Failing to adequately observe the rights of employees to engage in protected activities could result in disputes with employees and/or regulators. You should contact an attorney licensed to practice in your jurisdiction for additional information about this area of the law.
Max Julian is an attorney at the Gertsburg Law Firm. Julian’s practice is focused on commercial litigation. He can be reached at email@example.com or by phone at (440) 571-7541. This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law, as well as a summary of a recent NLRB decision regarding this area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney. If you have specific questions about your particular situation, you should contact an attorney licensed to practice in your jurisdiction.
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i Pub. L. No. 74-198, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151–169)
ii See OFFICE OF THE GENERAL COUNSEL, N.L.R.B., BASIC GUIDE TO THE NATIONAL LABOR RELATIONS ACT, at 12, available here
iii National Captioning Institute, Inc., Case No. 16-CA-18252, 368 NLRB No. 105, slip op. (Oct. 29, 2019), available here
iv see AdvancePierre Foods, Inc., 366 NLRB No. 133, slip op. at 1 fn. 4, 24–25 (2018)
v Nat’l Captioning Inst., at 2.
vi Nat’l Captioning Inst., at 5 (emphasis added).