NLRB Likely To Strictly Enforce Employee Personal Data Rules

Expect Strict Enforcement On NLRB Requirement to Provide Employee Personal Data

The gifts for human resources professionals just keep on coming from the National Labor Relations Board.  In early October, I posted the following note as part of our labor updates on the CUE labor relations blog.

Failure to Provide Required Available Employee Personal Information Costly

Earlier this month, an NLRB Hearing Judge ordered that an election be re-run after agreeing with objections that an employer had failed to comply with the new NLRB election rule procedures requiring that employers provide

As reported in an article in National Law Review, the new rule on an employer’s obligation to provide voter contact information provides:

Absent extraordinary circumstances, within two business days after the issuance of the direction of election, the employer must provide the Regional Director and the parties the list of the full names, work locations, shifts, job classifications, and contact information (including home address, available personal e-mail addresses, and available personal cellular or phone numbers) of all eligible voters ….

In the case of Danbury Hospital, No. 01-RC-153086 (Sept. 16, 2015), it appears as if the HR department relied exclusively upon one internal system to gather personal emails and phone numbers for the union.  When the union noted the very small percentage of numbers provided, they filed an objection and the Board investigated.  The facts showed that there were several other internal systems where such data was recorded and available to the employer, and as a result of this and some other facts, an election rerun was ordered.

Now, Bloomberg Daily Labor of a decision last Friday is very significant and presents a communication opportunity for your management teams. The decision was made by the Regional Director of Region 1 in Boston on union objections to an election loss in which and ordered that the election be run again due to the failure of the employer to make exhaustive efforts to provide the required personal phone number and email addresses for employees.

Labor and employee relations practitioners would be well served to review the case. It’s a cautionary tale of an employer victory that was overturned because of an insufficient list – even though the phone numbers and personal email addresses of 94% of the employees were provided to the union and the NLRB.

CUE Labor Lawyer Advisory Committee member Clyde Jacob predicts that the NLRB will be very strict in their enforcement of the new voter eligibility list requirements, and that this could easily lead to an affirmative requirement for all employers to have all of their employees phone numbers and personal email addresses readily available as a normal part of HR business.

Demonstrating due diligence in your information gathering for the Excelsior list is going to be a critical part of election preparation for employers.  It would be wise to conduct audits of your systems in advance, including both automated and manual systems to ensure you can respond quickly to the new voter eligibility list requirements. Your audit should include potential sources of information outside your internal HRIS, including supervisory lists, I-9 forms and any external sites where employees may provide personal data in order to receive company discounts or other services.