NLRB: Employees May Use Employer Email on Nonworking Time

On December 11, 2014, the National Labor Relations Board issued a greatly anticipated decision in Purple Communications , Inc. v. Communications Workers of America, AFL-CIO. The Board held employees may use employer email systems for statutorily protected communications on nonworking time, unless the employer shows a business justification for prohibiting it. In reaching this decision, the Board overruled prior case law to respond to technological changes in society.

The Board overruled its 2007 decision in Register Guard, finding it "was clearly incorrect." Register Guard held an employer may completely prohibit employees from using the employer's email system for concerted activities protected under Section 7 of the National Labor Relations Act. Register Guard allowed employers to completely ban employees from using the employers email system for these purposes without demonstrating any business justification, so long as the ban was not applied discriminatorily.

Purple Communications overruled Register Guard, finding it undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, and granted too much weight to employers' property right. The Board noted statistics showing email has become the most pervasive form of communication in the business world. The Board also discussed the Supreme Court's decision in City of Ontario, California v. Quon, which found some personal use of employer email is common and usually accepted by employers.

The Board stressed its holding in Purple Communications is "carefully limited." The holding only applies to employees who have already been granted access to the employer's email system and does not require employers to provide such access. Also, an employer may justify a total ban on nonwork use of email by showing the ban is necessary to maintain production or discipline.  Employers may also impose uniform and consistent controls over its email system to the extent necessary to maintain production and discipline. The holding is limited to email access, and does not extend to other forms of electronic communication. Although a small step, this decision shows the Board's willingness to adapt to ever-increasing technological changes.

This decision is about access to employers' email systems, not confidentiality of those emails.  It is possible some employers will read emails sent through their email systems and labor leaders should use caution about what they send on an employers' email system.

Court of Appeal Denies Administrative Appeal for Officers' Involuntary Transfers

On December 9, 2014, the California Court of Appeal held the Public Safety Officers' Procedural Bill of Rights Act ("POBR") does not afford officers the right to an administrative appeal of a transfer of assignment solely because the transfer may lead to negative employment consequences. In Los Angeles Police Protective League v. City of Los Angeles, the Court of Appeal denied two peace officers an administrative appeal for their involuntary transfers of assignments.

In City of Los Angeles, two officers were involuntarily transferred to different assignments. The City based one transfer on the officer's negative performance in the areas of counseling, communication, and management skills toward subordinate employees. The City transferred another officer because a discipline investigation supposedly damaged the officer's relationships with his coworkers. The City claimed his transfer provided an opportunity for a "fresh start with new coworkers."

POBR affords officers an opportunity for administrative appeal of "transfers for purposes of punishment." The officers alleged their transfers were punitive. As evidence, one officer asserted that the transfer would not allow her to work as many overtime hours and she would lose her department-issued take-home vehicle. The other officer showed he was placed on restrictive duty status, which prohibited him from carrying a gun, and the transfer damaged his reputation. Both officers asserted the transfers would adversely affect their opportunities for promotion in the department.

The court held the transfers were not punitive and the officers were not entitled to an administrative appeal. The court held the loss of possible overtime did not result in a "reduction of salary" because the officers were not entitled to particular amount of overtime and it varied depending on departmental needs. The court also found officers were not entitled to take-home vehicles, and it did not result in any reduction of salary. In addition, the City presented evidence that involuntary transfers would not hurt the officers' chances of promotion. This is an unfortunate case for peace officer's appeal rights.

California Supreme Court: Arbitrators May Rule On Pitchess Motions

On December 1, 2014, the California Supreme Court held arbitrators may rule on Pitchess motions during peace officer administrative appeals. The court's decision in Riverside County Sheriff's Department v. Stiglitz ensures peace officers can get information to defend discipline cases.

In Stiglitz, the Riverside County Sheriff's Department terminated a deputy for allegations of falsifying payroll forms. The deputy appealed the discipline to arbitration. The deputy intended to assert a disparate treatment defense, arguing others had committed similar misconduct but were not fired. To prove this defense, the deputy sought redacted records "from personnel investigations of any Department employees who have been disciplined for similar acts of misconduct." She limited her request to events during the previous five years, and only sought incident summaries, the rank of the officer, and the discipline imposed. The department objected, arguing in part that the requested information was confidential and the arbitrator lacked authority to rule on Pitchess motions.

The court held arbitrators have the authority to grant Pitchess motions. Evidence Code section 1043 states the motion should be filed in the appropriate court "or administrative body." The court held this language specifically grants arbitrators the authority to rule on the Pitchess motions because otherwise, the Legislature would have authorized filing a motion in a body not authorized to rule on it. The court also noted the Legislature did not provide a mechanism to transfer a motion from an administrative proceeding to superior court. The absence of such a mechanism showed the Legislature's intent for arbitrators to make such rulings.

The court also held its conclusion is consistent with the purposes behind the Pitchess statutes and the Public Safety Officer Procedural Bill of Rights Act ("POBRA"). The Pitchess statutes reflect the Legislature's attempt to balance a litigant's discovery interest with an officer's confidentiality interest. These interests must be balanced whether the motion is filed before a court or an administrative hearing officer. Also, POBRA grants officers the right to administratively appeal an adverse employment decision and give the officer an opportunity to convince the agency to reverse its decision. Allowing discovery of relevant information to an officer's defense during the administrative hearing furthers these goals.