LEGAL: Should employers keep email addresses of employees or not?

By Jeff Jones
Special to the UCBJ

Some employers are asking whether they should collect employee email addresses. The main concern is that under the National Labor Relations Board (NLRB) “quickie election” rules, after a union files an election petition with the NLRB, the union is entitled to the email addresses of voting employees retained by the employer. Thus, by collecting employee email addresses, the employer may be doing the union’s homework for it, allowing the union to freely communicate with employees. 

On the other hand, employee email addresses are very helpful to employers. Employers can use such emails addresses to communicate benefit information to employees, to allow employees to exercise benefit options online, to do exit interviews, and to handle a host of other matters.

Let us first review some of the various considerations. In December, the Republican-majority members of the NLRB asked certain questions in consideration of a revision of the “quickie election ruling” itself. Such a change in regulations takes a long time, however, probably a couple of years and possibly longer. The current regulations require the employer to provide such email addresses after the filing of the union election petition if the employer has the email addresses.

While the current Administration can make certain changes administratively in the quickie election rule, it cannot rewrite the rule itself and so the quickie election provision on email addresses is likely to continue until the rule itself is modified or revoked.

There are many corporate advantages to requiring employee email addresses, with the main disadvantage appearing to be the quickie election rules. Another disadvantage is that the government may use employee email addresses in an effort to enforce other laws, such as discrimination laws. But can the employer itself utilize to its advantage the email addresses to counter union organizational attempts? This writer thinks it can.

First, often the most important part of a union organizing campaign is the pre-election petition campaign of the union and the informational counter-campaign conducted by the employer. If the employer has employee email addresses, it can communicate its informational campaign to employees, and their families, by email. The union will not have access to such email addresses until two business days after an election agreement is finalized by the NLRB, company and union. Thus, having access to employee email addresses can benefit the employer during the lengthy organizational process, which occurs prior to the election petition being filed.

A similar question is raised with respect to the quickie election rules as it relates to the submission of cell phone numbers, which would also be conveyed to unions if you have them available in a list. However, the potential value of such numbers to the employer (unless necessary for operational purposes) is much less than emails. Furthermore, the use of cell phones for union campaign matters is more intrusive and, in some cases, legally problematic for employers. As such, the collection of these numbers is not encouraged unless it is already done for HR or operational purposes.

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