The Trump NLRB Will Smash the Google Guy – MattBruenig | Politics
- The Trump NLRB will want to overturn Purple Communications, which was decided in 2014 and reversed prior NLRB precedent on the question of the use of corporate email. The pre-2014 rule favored by conservatives says that corporate email systems are company property and so employees have no right to use them in ways not sanctioned by the boss.
- The Trump NLRB will also want to give employers as much latitude as possible in firing someone for offensive remarks, and so may even be willing to interpret Atlantic Steel to permit termination in this case. By lowering the bar for what counts as too offensive to be protected, they will make it easier for employers to find ways to get rid of union activists.
- Since the Title VII argument has not been directly confronted by the NLRB before, it is also conceivable that the Trump NLRB would rule that employers have the right to terminate employees engaged in protected activity where there is any colorable Title VII claim resulting from the way that activity was conducted.
In basically all cases, a conservative NLRB will want to reduce the ways workers can coordinate with one another, and increase employer discretion to terminate employees. When I raised this point on Twitter, someone said that this might be different under Trump because wouldn’t such a ruling feed into the political correctness and whatnot that he hates. And to that I can only laugh: at the end of the day, what conservatives want to do is shift power to bosses over workers, and they are really good at keeping their eyes on the prize.
It’s always weird to find I’m losing a right I didn’t think I had. I would have bet money that companies had absolute discretion over use of corporate email system - now I found out that for two years they didn’t and soon they will again.
Which raises some interesting questions about the value of rights a person doesn’t know about, but I suppose this was a union issue to begin with.
The US Government is not actually as stupid and rigidly literal as people on the internet claiming “you commit three felonies a day” seem to think. A lot of regulation around rules is about how they actually get enforced in the real world.
If you actually wanted to make an email system that could only be used for company business, and you punished or fired anyone who was sending jokes or casual conversation on your email, you would probably be fine.
If you did what most companies do, and ignore how people use internal email at all until you want to fire them, then the government is not an idiot. They can see that you’re just using the email system as an excuse. And since employers are presumed to want to fire people for illegitimate reasons (race, sex, age, workplace organizing), evidence that an employer is being selective in how they enforce a rule looks bad on them.
(This is why your lawyer tells you to enforce your rights consistently, and not just “only when you care about it.” Which is why Disney takes down every copyright violator, no matter how trivial to their bottom line. It’s about establishing consistency.)
So you can’t nominally say “only use the company email for business reasons”, encourage and allow a culture of everyone sending jokes and essay length arguments over email, and then fire the first black guy to do the same. This seems wholly reasonable, and focusing solely on the rights of the company over their email will lead you to perpetuate injustice.
Now James is not a black guy, or any of the normal protected classes. However we have laws protecting workplace organizing, which includes complaining about your workplace. If we didn’t have laws against that, workplaces would be much worse places to be, thank you very much. His challenge will be convincing the NLRB that that was what he was doing, but a good lawyer should be able to make a case (but still probably lose.)
Actual rules, rights, and regulations: kind of messy.