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Apple’s Restriction of Employee Slacking Likely Unlawful
Despite Apple’s stated policy of prohibiting employees from creating Slack channels that are not business-related, it has allowed the creation of channels for employees to discuss gaming, their pets, and even to trade “dad jokes.”
Does Apple’s action violate the National Labor Relations Act (“NLRA”)? Probably. Generally speaking, Section 7 of the NLRA allows employees to engage in “concerted activities” for “mutual aid or protection.” Employees engage in concerted activities whenever they band together to address work-related issues. Section 8(a)(1) makes it unlawful for an employer to interfere in such concerted activities. It is long-accepted that discussing compensation is protected concerted activity, and employers therefore bar employees from doing so, regardless of whether they are represented by a union. So Apple employees’ efforts to discuss their wages for the purpose of addressing the gender pay gap will in all likelihood be treated as concerted activity.
But is Apple required to allow its employees to use its property (its Slack network) for this purpose? Perhaps. The National Labor Relations Board (“NLRB”) is practically famous for flip-flopping its rulings on important issues whenever a new party takes control of the White House. The NLRB has flip-flopped three times since 2007 on the issue of whether an employer can prohibit the use of its equipment such as computer systems for concerted activity. Most recently, the NLRB’s 2019 Caesar’s Entertainment decision held that an employer’s property right in its equipment takes precedence over employees’ right to engage in concerted activity. Caesar’s Entertainment left two exceptions: 1) employers cannot target concerted activity; and 2) employees must have a reasonable alternative means of communication available to them.
While Apple’s stated policy of prohibiting Slack channels that are not business-related is most likely permissible under Caesar’s Entertainment, banning the pay equity channel while allowing channels about pets and dad jokes arguably targets concerted activity in exactly the manner prohibited by Caesar’s Entertainment. It is a general principle of employment discrimination law that the unwritten policies an employer actually enforces control over written but unenforced policies. It is also difficult to imagine any legitimate reason that the pay equity channel burdens Apple’s right to control its computer systems any more than a channel about gaming. Employers should also beware that the Biden-era NLRB may be looking for an opportunity to overturn Caesar’s Entertainment and reinstate its Obama-era Purple Communications decision that allowed employees to engage in concerted activity on company computer systems unless the employer demonstrated special circumstances.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.