Younger Workers Primarily Affected by Potential Email Privacy Invasion

NEW YORK (MainStreet) — Should the National Labor Relations Board (NLRB) compel employers to provide union organizers with the phone numbers and email addresses of employees they want to solicit for votes for a union?

One Florida Congresswoman, Sandy Adams, was so concerned about this she introduced legislation, in 2012, to prevent it.

Email addresses are not the same as mailing addresses. Email accounts can be hacked, spoofed and spammed. All of which poses a privacy concern to an employee already receiving mail and personal visits from union organizers.

Police can be called to remove someone harassing you at home. The phone company can be enlisted to prevent harassing phone calls. But who intercedes in emails?

Email addresses are also User ID's for personal financial websites like credit cards and stockbrokers. So what is a person to do?

Besides if it is emails today could Twitter and Facebook accounts far behind - in today's high tech age?

The NLRB is a federal agency created in 1935 as part of the National Labor Relations Act. The NLRB, among other things, authorizes elections to permit employees to vote whether they wish to be represented by a particular labor union or to decertify an existing union.

Currently, the NLRB requires an employer to provide a union which has petitioned a company to let employees vote to unionize, with an "Excelsior list" named after a company in an NLRB case. This list contains the names and addresses of all the employees eligible to vote. This must be done within seven days of the NLRB's direction of an election.

Over the years some have claimed that unions abuse this privilege by harassing employees to vote for them rather than just campaign to solicit votes. Unions deny this happens.

Unions favor this proposal - understandably because it just is one more avenue to an employee. Businesses and some workers are opposed. Others are not certain.

The Electronic Frontier Foundation, a digital rights group, is not too troubled by it.

"We've come in favor of laws that restrict the rights of employers and others to ask for social media passwords, which would allow them to see private aspects of your accounts--things that you have set to private, Facebook email convos, things like that," said EFF spokesperson Rebecca Jeschke. "That's very obviously deeply intrusive, to you and whoever you've talked to on social media platforms. So I think it's a big jump from someone wanting your email address -- to contact you -- and wanting inside access to your social media accounts -- to see what you've been saying privately. After all, the small number of employers who have asked for this sort of thing inspired quick and vocal public condemnation, not to mention a bunch of state laws."

John Raudabaugh, a former member of the NLRB and a labor law professor at Ave Maria School of Law in Florida, said that while the proposal is not technically before the NLRB, the chairman, Mark Pearce, is an advocate for it. He outlined the pros and cons of this proposal.

"The reasons for promoting this addition to the required Excelsior list information are (1) it's the modern age, and email is the method of communicating, (2) employee's addresses may change and/or not be up-to-date while email remains current, (3) email allows for quick and constant communication contact allowing for more frequent outreach to employees by a union or unions undergoing a representation election, and (4) because communication even by a company is frequently by email, it should be used for union campaign contact," explained Prof. Raudabaugh.

"Companies would oppose providing employee personal emails," he continued, "because (1) employees may not want their personal emails made public, (2) it may violate a state or federal internet confidentiality law or regulation, (3) it may incite more employee use of a company's internet during working time and working hours affecting the speed of system processing, and (4) unions don't need it since they file a petition for an election only after they usually have obtained 70% or more employee signatures based on contact, home visits, and mailings reflecting that the union already has achieved their outreach."

"The danger if adopted is that a third party has an individual's personal email allowing use and contact at any time for any reason even unrelated to the workplace and the union's interest in representing the employee," Raudabaugh concluded. "It is an invasion of privacy beyond what is required or necessary."

The whole issue will probably be settled in court. The courts have prohibited employers from demanding information about social media. The Electronic Privacy Information Center (which did not respond to a request for comment for this article) has filed has filed an amicus brief in a case before the Fourth Circuit Court of Appeals, United States v. Hamilton, advocating in favor of privacy interests an employee's personal e-mails.

As digital communications supplant written communications - especially by the younger generation - the ability of the government to order private entities and individuals to furnish email addresses to other private entities will be more important than ever.

--Written by Michael P. Tremoglie for MainStreet

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