1) Labor Board OKs Personal Use of Company E-Mail
2) Supreme Court Rules Against Worker Pay for Screenings in Amazon Warehouse Case
1) Labor Board OKs Personal Use of Company E-Mail
By Tom Raum, Associated Press
Thursday, December 11, 2014
WASHINGTON (AP) In a victory for unions, the National Labor Relations Board ruled Thursday that employees can use their company email accounts for union organizing and other workplace-related purposes, if they do it on their own time.
Once an employer gives an employee access to the company email system, then the business cannot restrict what the employee emails, so long as it is generally workplace-related and isn't during working hours, the NLRB ruled. The NLRB is a government agency that investigates unfair labor practices.
The ruling said that "the use of email as a common form of workplace communications has expanded dramatically in recent years." The ruling could give unions a powerful organizing weapon.
The three Democrats on the five member board voted "yes," while the two Republicans abstained.
The ruling reverses a 2007 board decision that employees don't have a legal right to use their employers' email for union activity or discussing wages or other workplace issues.
It also upholds an opinion by the NLRB's general counsel, who suggested that workers had a presumed statutory right to use company email to discuss a range of workplace issues so long as they did it on their own time and unless an employer could demonstrate that doing so would hurt productivity of office discipline.
The decision was a victory for the Communications Workers of America, which brought the case in 2012 after it was unable to use company email to organize employees of Purple Communications in Rocklin, California, a company that provides interpreting services for the deaf and hard of hearing. The union contended that prohibiting Purple workers from using company email for to organize interfered with its efforts.
Bernie Lunzer, president of the Newspaper Guild-CWA and a vice president of the Communications Workers of America, called the ruling "a big victory for workers in general. Basically the board is saying that there is a wide berth for that kind of discussion, that it can't be prohibited. There are limitations. This is something where people are supposed to be doing this not on the work time. And they can't be obstructive to the productivity of the company. But the flat-out prohibition of any discussion of forming a union or acting collectively, basically to board has said that's fair."
Joel Barras, a lawyer who represents employers in collective bargaining and labor arbitration matters, said that the NLRB in its ruling "once again elevated employee protected activity over employer property rights. Not only will employees now have the ability to use their work emails in their efforts to unionize or discuss terms and conditions of employment with co-workers, an employer's communication system may also become an incredibly effective tool used to recruit members to form or join class-action cases."
In Thursday's ruling, the board majority said the earlier decision "was clearly incorrect. The consequences of that error are too serious to permit it to stand."
"By focusing too much on employers' property rights and too little on the importance of email as a means of workplace communication, the Board (in its earlier ruling) failed to adequately protect employees' rights ... and abdicated its responsibility 'to adapt the Act to the changing patterns of industrial life."
A number of weighty issues have yet to be decided by the board, and it seems likely to tackle some of them before the Dec. 16 departure of one of its Democratic members, Nancy Schiffer, when her term expires.
There will still be a 3-2 majority on the board with the GOP takeover of Senate control next year after the Senate voted 54-40 earlier this month to confirm Lauren McGarity McFerran, a Democrat, to fill the vacancy.
Pending decisions include whether college athletes on scholarships have the right to unionize. The case stems from an effort by Northwestern University scholarship football players to organize.
Online: NLRB Case 21-CA-095151
Follow Tom Raum on Twitter: http://www.twitter.com/tomraum
2) Supreme Court Rules Against Worker Pay for Screenings in Amazon Warehouse Case
Adam Liptak, NY Times
Dec. 9, 2014
WASHINGTON The Supreme Court on Tuesday ruled unanimously that a temp agency was not required to pay workers at Amazon warehouses for the time they spent waiting to go through a security screening at the end of the day. The workers say the process, meant to prevent theft, can take as long as 25 minutes.
Justice Clarence Thomas, writing for the court, said the screenings were not integral and indispensable to the workers jobs, which involved retrieving products from warehouse shelves and packaging them for delivery to Amazons customers. That meant, he said, that no extra pay was required.
The decision was a big loss for workers challenging the security checks, which are common among retailers. According to a brief filed by the agency, there have been 13 class-action lawsuits against Amazon and other companies involving more than 400,000 plaintiffs and seeking hundreds of millions of dollars.
The case that the Supreme Court ruled on Tuesday turned on the meaning of a 1947 law, the Portal-to-Portal Act, which says that companies need not pay for preliminary or postliminary activities, meaning ones that take place before and after the workday proper. The Supreme Court interpreted the law in 1956 in Steiner v. Mitchell to require pay only for tasks that are an integral and indispensable part of the principal activities for which covered workmen are employed.
The case decided Tuesday was brought by Jesse Busk, who worked in a Las Vegas warehouse, and Laurie Castro, who worked at one in Fenley, Nev. They sued Integrity Staffing Solutions, the temp agency, seeking to represent a class of workers and to be paid for the time it took to remove their wallets, keys and belts and to pass through metal detectors.
The plaintiffs said the screenings would not have taken long had the agency added more security screeners or staggered the ends of work shifts. In practice, they said, the waits approached half an hour.
Amazon has disputed that assertion. In a statement in October, when the case was argued, an Amazon spokeswoman said employees walk through postshift security screening with little or no wait.
The United States Court of Appeals for the Ninth Circuit, in San Francisco, had allowed the case to proceed, saying the screenings were for the companys benefit and were a necessary part of the workers jobs. That was enough, the appeals court said, to make the screenings integral and indispensable.
Justice Thomas disagreed, saying the appeals court had erred by focusing on whether an employer required a particular activity. The right test, he said, was whether the activity is tied to the productive work that the employee is employed to perform.
Justice Thomas said Tuesdays ruling was required by the 1947 law, which was a reaction to Supreme Court decisions that had required pay for a broad range of work-related activities and gave rise to a flood of litigation seeking nearly $6 billion. Congress responded by tightening the standards, saying the alternative would have been the financial ruin of many employers. Continue reading the main story Continue reading the main story Continue reading the main story
Since then, Justice Thomas said, the court has required pay for activities that were an intrinsic element of the job and could not be skipped. Under that test, battery-plant workers had to be paid for the time spent showering and changing clothes because the materials they worked with were toxic. And meatpackers had to be paid for the time it took to sharpen their knives because dull knives would slow production.
Security screenings are different, Justice Thomas wrote. Integrity Staffing could have eliminated the screenings altogether, he wrote, without impairing the employees ability to complete their work.
Justice Thomas noted that the Obama administration had sided with the temp agency, adding that the administrations position was consistent with a 1951 letter from the Labor Department that did not require pay for screenings at a rocket-powder plant. Workers there were screened for matches and lighters on the way in and to prevent theft on the way out.
Justice Sonia Sotomayor joined the courts opinion but added a concurrence to stress its limited scope. Activities related to worker safety and efficiency remained covered, she said. But in the warehouse case, she wrote, employees could skip the screenings altogether without the safety or effectiveness of their principal activities being substantially impaired.
She added that, as its name suggests, the Portal-to-Portal Act was primarily concerned with defining the beginning and end of the workday.
The searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so, she wrote, adding that those were activities that Congress clearly meant to make noncompensable.
Justice Elena Kagan joined Justice Sotomayors concurrence in the case, Integrity Staffing Solutions v. Busk, No. 13-433.
Spread the word