October 30, 2020
The Association argued for greater protections for the personal information of employees in union election proceedings in comments responding to an NLRB proposed rule on employee information employers are required to provide to unions in election proceedings.
The Board’s proposed rule would stop requiring employers to give unions employees’ personal email addresses and cell phone numbers during union election campaigns. Employers have long been required to provide unions the names and home addresses of its employees prior to a union election as part of a voter list. In 2014, the Obama-era Board added to these required disclosures by requiring employers to also provide personal email addresses and personal cell phone numbers in such voter lists.
In comments to the NLRB, the Association cited the numerous privacy concerns associated with requiring employers to provide their employees’ personal email addresses and personal cell phone numbers. The Association argued that employee privacy rights clearly outweigh the interest of a petitioning union in acquiring additional employee personal information, particularly when unions have alternative means of making information visible to employees, including home visits.
In the absence of a complete removal of employee cell phone numbers and email addresses from the voter list, the Association recommended a variety of restrictions and limitations to reduce the risks to employee personal privacy and security. These restrictions included requiring opt-in and/or opt-out provisions, limiting the use of such personal information strictly to the representation proceeding in question, after which the information must be securely deleted, and strict liability for unions for any damages resulting from a breach or compromise of employee personal information.
Outlook: It is likely that the Board’s final rule, which will be published sometime before the end of the year, will remove entirely the requirement to provide personal email addresses and cell phone numbers in voter lists. The final rule will likely be subject to legal challenge by unions and other employee interest groups, and a future Democrat-controlled Board would likely reinstate the 2014 rule.