European Court Limits Employers’ Right to Monitor Workers’ Email.
By SEWELL CHAN SEPT. 5, 2017.
The European Court of Human Rights in Strasbourg, France. The court’s Grand Chamber ruled that employers must inform workers in advance as to the extent and nature of their monitoring. Credit Christian Lutz/Associated Press
Europe’s human rights court ruled on Tuesday that companies can monitor their employees’ email if they are notified in advance, giving shape to a rapidly evolving area of the law at the intersection of technology, privacy and workers’ rights.
In doing so, judges are scaling back a previous ruling that had stirred unease in Europe, where privacy is viewed as a fundamental right. That earlier decision had taken a similar approach to existing law in the United States, which gives companies wide-ranging powers to monitor workplace communications.
The latest decision, by the Grand Chamber of the European Court of Justice, provides more protection by requiring companies to inform workers of their policies. Judges also urged European governments to establish safeguards against abuse, and said that businesses should consider using forms of monitoring that avoid infringing on an employee’s privacy.
The case centered on Bogdan Mihai Barbulescu, a Romanian man who had created a Yahoo Messenger account to communicate with clients. But his bosses summoned him on July 13, 2007, confronting him with a week’s worth of chat transcripts in which he talked with his brother and fiancée about personal matters. Two weeks later, he was fired.
Romanian courts ruled against Mr. Barbulescu, who then brought his case to the European Court of Human Rights. In January 2016, the court ruled, 6 to 1, that the employer was justified in reading the chat history in the context of enforcing discipline. “It is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours,” it said at the time.
In the new ruling, the Grand Chamber, effectively the final appellate division within the European Court of Human Rights, dialed that back.
In an 11 to 6 ruling, it found that Mr. Barbulescu’s privacy rights had been violated.
“Today’s ruling is fairly clear in how it outlines the parameters of monitoring employees,” said Stephen Ravenscroft, a London-based partner specializing in employment law at White & Case, a law firm. “It won’t be sufficient for employers to have a general policy permitting monitoring — the policy will need to be much more detailed, outlining why, how and where employees may be monitored and explaining how any information gathered through monitoring may be used.”
Although a colleague at the Romanian company had been fired for using her work computer, phone and photocopier for personal purposes, the court found that Mr. Barbulescu had “not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual contents of his messages,” it said in its ruling.
Furthermore, the chamber found, Romanian courts did not sufficiently examine the company’s need to read the entirety of Mr. Barbulescu’s messages, or the seriousness of the consequences of the monitoring, which resulted in dismissal.
It noted that only a few countries in Europe — Austria, Britain, Finland, Luxembourg, Portugal and Slovakia — have explicitly regulated the issue of workplace privacy through domestic legislation. Most countries in the region do, however, require employers to give prior notice of monitoring. In countries like Denmark, France, Germany, Italy and Sweden, employers may monitor emails marked by employees as “private,” but may not look at the content without permission.
The chamber ruled that countries should ensure that companies’ efforts to monitor employees’ communications are “accompanied by adequate and sufficient safeguards against abuse.”
The latest ruling in the case, Barbulescu v. Romania, applies to the 47 members of the Council of Europe, which includes nearly every country on the Continent, including Russia, Turkey and Ukraine. (The Council of Europe, which focuses on human rights, is separate from the European Union and is not to be confused with the European Council, one of the bloc’s governing bodies.)
In a dissent, six judges wrote that the Romanian courts had not violated Mr. Barbulescu’s right to privacy. They argued that the Romanian authorities had carried out a “careful balancing exercise between the interests at stake, taking into account both the applicant’s right to respect for his private life and the employer’s right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company.”
In a statement, one of Mr. Barbulescu’s lawyers, Emeric Domokos-Hancu, said the court’s decision proved that “the right to privacy in the workplace does exist.”
And, he said, the court had “correctly ascertained that a large part of the social, human, professional and personal relations are in fact initiated in workplaces.”
The Romanian Ministry of Foreign Affairs, which represented the country in court, did not immediately respond to a request for comment.
This was the first case that the court had taken up concerning the monitoring of an employee’s electronic communication by a private employer.
When it comes to electronic surveillance, the court has focused mostly on government use and collection of personal data, often in the context of criminal law or health care, and not the conduct of private companies.
In 2007, the European Court of Human Rights found that Britain had violated the privacy of a secretary at a government-run college in Wales by monitoring her phone calls, email and internet use in 1999.
She had not been notified that her communications might be monitored, and the legal framework at the time wasn’t clear. Britain enacted regulations in 2000, giving employers broad power to record or monitor employees’ communications without consent, as long as they took reasonable steps to inform employees that their communications might be intercepted.
In a case that is pending, an employee of the French national rail company, SNCF, has protested his firing. His employer had found pornography on his work computer, on a hard drive marked “personal data.”
AUGUST 2017 Select events and news from the world of organized labor
Organizing
AFL-CIO President Richard Trumka has announced that the union will be undertaking a new organizing strategy to strengthen labor. Trumka states that the strategy will consist of increased coordination with other unions with less of a focus on the individual pursuit of units. The new strategy comes after recent layoffs of dozens of staff members and decreasing union membership.
Nearly 60 Flagship Facility Services cafeteria workers contracted at Facebook’s Seattle location voted in favor of representation by UNITE HERE Local 8. The vote comes after 500 cafeteria workers chose unionization at the company’s Menlo Park, Calif. facility.
More than 280 Federal Aviation Administration instructors at Science Applications International Corp. in Oklahoma City voted to join the International Association of Machinists (IAM).
In separate elections, more than 800 employees at Emanuel Medical Center in Turlock, Calif. voted for union representation. Four hundred registered nurses will be represented by the California Nurses Association (CNA), an affiliate of National Nurses United, after a 284-4 vote, and in a 265-55 vote, nearly 400 service workers, made up of nursing assistants, cleaning staff, radiology and other service employees, approved SEIU– United Healthcare Workers West as their union representative.
Philadelphia Mayor Jim Kenney, American Airlines, and SEIU Local 32BJ—the union representing 1,400 subcontracted Philadelphia International Airport workers—announced a first of its kind agreement between the union and two American Airlines subcontractors, PrimeFlight and Prospect. The agreement recognizes 32BJ SEIU as the workers’—bag handlers, wheelchair attendants, aircraft cabin cleaners, and sky caps— union of choice and calls for bargaining to begin between the union and contractors. The workers voted overwhelmingly in April to join the SEIU, but the contractors had refused to negotiate. After the workers threatened a walkout last month, American Airlines stepped forward to assist with negotiations.
The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) filed seven unfair labor practice charges with the National Labor Relations Board (NLRB or Board) against Nissan North America, Inc. after it lost an election at a Mississippi plant. The union alleges that the company interfered with a representation election by holding multiple captive audience meetings in which it presented anti-union videos, told workers they would lose benefits or their jobs if they voted in favor of the union, and collected information about and maintained an employee rating system based on workers’ perceived support of the union.
Strikes & Labor Disputes
Thirty-seven mechanics and technicians at Lakehead Motors, a car dealership located in Thunder Bay, Ontario, struck after contract negotiations stalled. The workers, represented by IAM Local 1120, seek to maintain their pensions and better wages in the terms of reimbursement for training and travel time.
Members of Automobile Mechanics’ Union Local 701 struck 130 Naperville, Ill. area car dealerships to protest alleged lack of career opportunities and work rules that impede on personal time, among other issues.
After five years of working without a contract, hundreds of Southwest Airlines mechanics at Midway Airport in Chicago and Sky Harbor International Airport in Phoenix are walking a picket line. The Aircraft Mechanics Fraternal Association represents the workers.
Machinists at forging company Wyman-Gordon went on strike one day after the expiration of their contract to protest the company’s plans to reduce workers’ short- and long-term disability benefits, break times, and the wages of new hires. IAM District 37 represents 270 workers at the Houston facility.
About 100 administrative employees of Welfare & Pension Administration Service, a Mercer Island, Wash. company that handles pension and healthcare benefits for nearly 250,000 workers in the region, walked off the job. The workers, who are represented by the Office and Professional Employees International Union Local 8, have failed to reach a new labor agreement after nearly a year of negotiations and seven months without a contract.
Three weeks after the expiration of their collective bargaining agreement, 220 members of Steelworkers Local 3509 began picketing PTC Alliance, the Western Pennsylvania-based steel mill.
Workers represented by International Brotherhood of Teamsters (IBT) Local No. 245 are striking vehicle components manufacturer, Reyco Granning Suspension, in Mt.Vernon, Mo. Reyco Granning has notified the strikers that their positions may be permanently filled by replacement workers if the strike continues.
Major Contract Settlements & Negotiations
An analysis of data compiled by Bloomberg BNA through August 4 showed that the average first-year wage increase for all settlements was 2.6 percent, compared with 2.7 percent reported in the same period in 2016. The median first-year wage increase for settlements reported to date in 2017 was 2.3 percent, compared with 2.5 percent, and the weighted average was 3.3 percent, compared with 3.1 percent reported in 2016. When lump-sum payments were factored into wage calculations, the all-settlements average first-year increase to date in 2017 was 2.8 percent, compared with 3 percent reported in the year-ago period. Median and weighted average increases were 2.5 percent and 3.9 percent, respectively, compared to the 2.5 and 3.6 percent increases reported in 2016. The all-settlements (excluding construction and state and local government) average increase was 3.0 percent, the same percentage in 2016; the median was 2.7 percent, also the same percentage as last year, and the weighted average was 3.0 percent, compared with last year’s 3.3 percent.
Sixty-seven percent of members of the International Longshore and Warehouse Union (ILWU) voted to extend their current contract with the Pacific Maritime Association to July 1, 2022. The contract, which covers 20,000 workers at 29 ports, raises wages and pensions.
Members of the Screen Actors Guild-American Federation of Television and Radio Artists (SAG) ratified a three-year contract covering 160,000 actors, announcers, broadcast journalists, and other media professionals. The contract, which is retroactive to July 1 and expires June 30, 2020, calls for 2.5-3 percent annual wage increases and increases streaming media residuals by 300 percent.
After more than a year of negotiations, members of the Communications Workers of America in California and Nevada ratified a contract with AT&T. The four-year contract, which is retroactive to April 10, 2016 and expires April 4, 2020, covers nearly 17,000 wireline and DirectTV employees and will increase wages by 11 percent over the term and increase pension by 1 percent annually.
In a 1,428-214 vote, hospitality and maintenance employees ratified a three-year contract with Pennsylvania State University. The contract is retroactive to July 1 and expires June 30, 2020 and provides annual raises and improved healthcare benefits and also maintains workers’ current healthcare plan without increased costs. Teamsters Local 8 represents the nearly 2,600 workers at the school.
SEIU Local 509 reached a tentative agreement with Bridgewell, a Peabody, Mass.-based nonprofit that operates group homes for physically and mentally challenged adults. The proposed three-year agreement would raise wages by 9 percent over the term of the contract, increase the company’s health insurance premium contributions by 3 percent, permit workers to cash out unused vacation time every year, and would provide immigrant workers with a 45-day grace period to resolve their status before losing their position.
The Association of Flight Attendants-CWA reached a tentative agreement with Mesa Airlines. The proposed four-year contract, which will cover about 1,100 flight attendants, calls for wage increases, an increased per diem for meals while away from the home base, and increased compensation for working nonscheduled hours when a plane is rerouted or stuck on the tarmac.
By a 3-1 margin, members of the United Steelworkers voted in favor of a new agreement with Goodyear Tire & Rubber Co. The agreement, which covers 7,200 workers at plants in Ohio, Virginia, North Carolina, Alabama, and Kansas, provides employees with an additional 40 cents an hour, cost of living adjustments, and the same health benefit coverage, albeit with increased premiums. Under the new agreements employees will also be allowed to transfer plants in lieu of layoff, provided that there is a vacancy, and will be protected from plant closures. The agreement will run to July 29, 2020.
After a 96-6 vote, full-time professors at Point Park University in Pittsburgh ratified their first contract. The contract, which is retroactive to the 2016-17 academic year and runs to 2021, provides improved compensation and working conditions. The Newspaper Guild of Pittsburgh represents the 140-member unit.
Legislation & Politics
In a 50-48 vote, the Senate confirmed Marvin Kaplan (R), formerly counsel for the Occupational Safety and Health Review Commission, as the newest member of the NLRB. The addition of Kaplan temporarily evens the number of Democrats and Republicans on the Board at 2-2. NLRB Chairman Phillip Miscimarra (R) has decided not to pursue his second term and will instead leave the Board when his term expires in December. Meanwhile, Peter Robb, a management-side attorney at Downs Rachlin Martin PPLC in Vermont, will likely be named NLRB General Counsel. The Office of Government Ethics mistakenly publically disclosed his name as a nominee for the position.
Following President Trump’s response to the fatal rally held in Charlottesville, Va., AFL-CIO President Richard Trumka and deputy chief of staff Thea Lee resigned from the President’s American Manufacturing Council.
A coalition of 17 states have asked the Department of Labor to rescind its “Persuader Rule.” The so-called “Persuader Rule,” requires public disclosure and reporting by employers and third-party advisors (including third-party labor relations attorneys or other consultants) of agreements or arrangements involving activities that may “persuade” employees concerning unionization and collective bargaining activities. The states, led by Texas, argue that the rule infringes upon employers’ rights to obtain legal advice about union organization and is “irreconcilable with federalism.” The states’ request follows the closing of a 60-day comment period for the DOL’s proposal to rescind the rule so that it may engage in additional statutory analysis and determine whether the rule has a “chilling effect” on companies’ capabilities to secure legal counsel.
Crime, Corruption & Other Misdeeds
Jerome Durden and Alphons Iacobelli, former Fiat Chrysler executives, pleaded guilty to an embezzlement scheme in which they, and the widow of UAW Vice President General Holiefield encouraged UAW employees to help them funnel $1.2 million intended for a UAW-Chrysler National Training Center in Detroit. Durden, who may testify against his co-conspirators, faces up to 37 months in prison and will have to pay restitution for unpaid taxes plus interest due to the IRS. Virdelle King, a former assistant director at the UAW Chrysler Department who helped negotiate and administer collective bargaining agreements between Fiat and the Union, also pleaded guilty to accepting money and other gifts from Fiat employees.
Roland Bedwell, a business manager for United Plant and Production Workers Local 175 in New York pleaded guilty to threatening to harm or disrupt the work of a construction company if the owner did not hire union workers. Secret tape recordings by law enforcement revealed that he alluded to his reputation as a “muscle man” for the Gambino crime family and threatened to bring back his group of “15 ‘ex-military’ men who were undeterred by the prospect of spending time in jail.” Bedwell faces up to 20 years in prison and is scheduled to be sentenced on November 2.
An internal investigation by a Machinists Local in Maine uncovered that its former secretary-treasurer stole more than $280,000 in union funds. Ryan Jones has been indicted for embezzlement and faces up to five years in prison if convicted.
Four members of Teamsters Local 23 in Massachusetts were acquitted of extortion charges after a 10-day jury trial. The members were alleged to have engaged in unprotected picket line conduct when they threatened violence and blocked vehicles from entering the shooting location of the show “Top Chef.” The members claimed they were merely attempting to convince the producers to hire union members.
John Hamilton, the former business manager for Local 324 of the International Union of Operating Engineers in Bloomington, Mich., pleaded guilty to an embezzlement scheme in which he forced employees to make weekly payments into a special fund that he used for himself. Hamilton faces up to five years in prison and a $250,000 fine.
A former NLRB compliance officer who was responsible for dispersing back pay awards to employees pleaded guilty to taking more than $400,000 in funds designated for that purpose. Hector Martinez faces 33 to 41 months in prison for wire fraud, an additional two mandatory years for aggravated identity theft, and must pay restitution.
Miscellaneous
For the third time, the U.S. Treasury Department approved a request from the New York State Teamsters Conference Pension and Retirement Fund to reduce pension benefits for its 35,000 members. The proposed reduction will result in an 18 percent cut in accrued monthly benefits for active participants, and a 29 percent cut for non-active participants. If approved by members in an upcoming vote, the cuts will go into effect on October 1.
Members of Service Employees International Union (SEIU) and Fight for $15 planned Labor Day rallies in more than 300 cities across the country to advocate for a higher minimum wage and increased union membership and against wage preemption and right-to-work laws. Fast food workers also participated in a one-day strike.
Despite some highly publicized impending failures of some multiemployer pension funds, such as the Teamsters’ Central States Southeast and Southwest Areas Pension Fund and the Pension Benefit Guaranty Corporation, the majority of construction plans are doing well and expected to remain solvent. Of the nearly 1,400 multiemployer pension plans in all industries, 114 are in critical and declining status. Plans in the construction industry, which total at 788, are performing better as only 30 plans are in danger of failure within 15 years.
United Electrical Radio and Machine Workers of America Local 506 will begin negotiating with GE Transportation to attempt to convince the company not to move operations at its Erie, Pa. locomotive plant to Fort Worth, Texas. In addition, Pennsylvania Gov. Tom Wolf (D) has worked to get the company to reconsider its decision, but has been unsuccessful. About 2,600 employees work at the Erie plant and a move is expected to devastate the area.
The IAM will hold new elections in January for leadership positions after reaching an agreement with the DOL. The DOL had contested the election after finding issues with the requirement that candidates demonstrate a minimum level of support prior to running. IAM released a statement disagreeing with the DOL’s position, given that the requirement was adopted by membership during the union’s 2016 convention. IAM represents nearly 700,000 workers in the aerospace and automotive industries.
The Treasury Department announced that pension fund benefits will be reduced for members of the United Furniture Workers Pension Fund A in Nashville. The cuts come after an election in which a large majority of plan participants voted against implementing the cuts—under the Multiemployer Pension Reform Act, uncast ballots count as ‘yes’ votes. Specifically, 1,938 participants voted against the cuts; 1,041 voted in favor; and 6,304 did not cast a ballot. The cuts are designed to stave off insolvency, which is projected to occur in 2022. To prevent such results in the future, Ohio Senator Rob Portman (R) has introduced legislation to prohibit uncast ballots as counting as ‘yes’ votes.
NLRB’s Enforcement of Secondary Boycott Restrictions Does Not Place Union Agent in Involuntary Servitude Nor Does It Encroach on Union’s Religious Freedom
Proskauer Rose LLP – Mark Theodore
USA September 1 2017
Labor Day is upon us. It is fitting, therefore, to enter the weekend with another case that exemplifies the bizarre world of labor relations. Like the case of the human resource manager who turned on his employer, or the nurse who felt her union activity protected her in screaming confrontations, we continue to see new odd and amusing situations. This one involving Picket Line Etiquette.
In Int’l Assn of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 229, 365 NLRB No. 126 (August 30, 2017) the Board was confronted with a fairly simple situation, an allegation that a union was attempting to coerce a neutral employer in connection with a labor dispute. Not many of these secondary boycott cases get tried because if a union does it enough it can be faced with ever increasing NLRB oversight and sometimes even monetary damages. Here, the dispute centered over the construction of a parking garage. The charging party (“Neutral”) furnished and installed the reinforcing steel. Neutral was signatory with the union. The union had a dispute with another contractor (“Primary”) performing concrete work at the site.
The union began picketing the site in its dispute with Primary, the signs lawfully stated that Primary was “Not Paying Area Standard Wages.” The picketing did not have the desired impact and so the union’s business agent sent a series of texts to Neutral’s employees who were members of the union. One text had a symbol of a picket sign which stated “Friends Don’t Let Friends Cross Picket Lines.” The text also contained a link to a union webpage document entitled “Picket Line Etiquette” which stated
Labor’s first commandment:
“THOU SHALL NOT CROSS THE LINE”
A good Union member is EXTREMELY CAREFUL when confronted with a picket line situation
When a picket line is established on a job where you are working:
You MAY LEAVE. You DO NOT TALK.
You READ the PICKET SIGN as you leave
You DO NOT hang around near the job
You know that ONCE A PICKET LINE IS ESTABLISHED, your Business Agents and other Union Officials
are legally gagged and handcuffed from giving advice pertaining to THAT JOB.
they can only tell you if the
Picket Line is AUTHORIZED.
A good union member knows their rights:
You have the right not to work behind ANY Picket Line
You have the right to decide for yourself whether to walk off a job being picketed.
You understand that YOUR TRADE may be UNDER ATTACK next and you would want everyone’s support.
…
BE PREPARED AHEAD OF TIME HOW TO REACT TO PICKET LINES
Under the Section 8(b)(4)(i)(B) of the Act a violation occurs by picketing or activity that induces or encourages the employees of a secondary employer to cease doing business with the primary employer. The Board has held that in evaluating whether inducement or encouragement occurs the statements made by union agents directly to Neutral employees if such statements would reasonably understood by the employees to be a “signal” or “request” to stop working.
There was very little question the text messages and the Picket Line Etiquette document was inducement or encouragement to engage in a work stoppage. Indeed, the union stipulated to that fact. So, why contest the case? Because the union claimed the Act could not be enforced for three reasons.
First, under First Amendment law the Act’s prohibition of appeals to employees is too broad. The ALJ noted that these “arguments, although eloquently presented, are rejected…it must be found that the [Supreme] Court” in 1951 found that outlawing secondary pressure does not violate the First Amendment. The union also asserted that Section 8(c) of the Act protects the union agent’s requests because there was no promise of benefit or threat of reprisal. The ALJ summarily rejected this argument.
Second, the union claimed that the secondary boycott provisions of the Act violated the Thirteenth Amendment of the United States Constitution. That amendment abolished slavery and involuntary servitude in 1865. The ALJ found, “[o]n this record, however, no evidence of involuntary servitude warranting application of the Thirteenth Amendment exists.” It is interesting to wonder whether such a record could exist when evaluating statements.
Third, as if the previous defenses were not a reach, the union shot for the moon and claimed its communications were protected by the Religious Freedom Restoration Act, which provides that the government may not “substantially burden” the free exercise of religion. The RFPA does not require the exercise of any particular religion only that the claimant engage in “any exercise of religion.” The union claimed its efforts to protect work for its members was a sincerely held belief that could not be abridged. The ALJ gave short shrift to this argument as well, noting that the union had failed to show the Act posed a “substantial burden.”
The Board adopted the ALJ’s finding of a violation without comment.
Of course, employers constantly make the free speech arguments, especially when defending against the NLRB’s handbook allegations and other efforts by the Board to regulate what is said in the workplace. So, in that respect the union’s arguments were not that far off the mark. This may be the first time that any party, employer or union, has made an involuntary servitude argument against the NLRB. The same goes for the alleged encroachment on religious freedom. Those arguments are one (two, actually) for the books. It is good to see that “Picket Line Etiquette” exists. In the immortal words of Emily Post, “Nothing is less important than which fork you use. Etiquette is the science of living. It embraces everything. It is ethics. It is honor.”