Apple’s Employees Have a Right to Discuss Their Wages
By Olivia Polston & Ariana R. Levinson
News headlines, both local and national, for 2021 have repeatedly featured unionization and labor activity, from the strike at Heaven Hill, to the first Starbucks in the U.S. to unionize, to the National Labor Relations Board ordering a new election at the Amazon facility in Bessemer, Alabama. The number of high-profile cases made Fall 2021 a great semester to study labor law. Many people who have not studied Labor Law may not realize that the National Labor Relations Board not only holds union elections and monitors collective bargaining and strikes but also guarantees all employees, unionized or not, the right to act together to better their working conditions. Right now there are nine open cases at the NLRB filed against Apple Inc. (Apple) by their employees, who do not belong to a union. We studied the cases, which made news headlines, where the employees charge that they were prohibited from creating a Slack channel to discuss unequal wages and advocate for gender wage parity.
Apple Inc. violated the law by prohibiting this channel.
Moreover, when the Board pursues these charges or other similar ones, they should and will likely adopt broad protections for employees to enable them to discuss wages and other terms and conditions of employment via employer provided email and other communications systems, such as Slack.
Background
Apple provides their employees with Slack, a business communication platform that enables employees to engage with one another through instant messaging, video calls, private groups, and chat rooms organized by topic. Apple allows employees to request and create groups on Slack called “affinity groups” for various non-related work purposes; one such purpose is to advocate working from home. However, in August of 2021, Apple rejected a request by employees to create a group on Slack for the purpose of discussing employee pay. The reason provided was that “Slack channels are provided to conduct Apple business and must advance the work, deliverables, or mission of the Apple departments and teams … Slack channels for activities and hobbies not recognized as Apple Employee clubs or Diversity Network Associations (DNAs) aren’t permitted and shouldn’t be created.”
National Labor Relations Act
The National Labor Relations Act provides that “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7.” Section 7 of the Act provides that employees have the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” which includes protection of the employees’ right to discuss pay and other terms and conditions of employment with one another.
Apple’s Slack Policy Remains Lawful (though likely not for long . . .)
Currently under precedent adopted by the Trump Board, Apple’s Slack policy is facially valid. In a 2019 decision, Ceasar’s Entertainment, the NLRB held that “[e]mployees have no statutory right to use employer equipment, including IT resources for Section 7 purposes.” Therefore, Apple may prohibit employees from utilizing Slack to discuss wages because Slack is an IT resource. Apple’s policy goal is to utilize Slack to “advance the work, deliverables, or mission of the Apple departments and team,” and discussing wages is arguably not one of these business purposes. Therefore, not allowing employees to discuss wages via Slack advances the goals of their non-business purpose policy because it requires employees to remain engaged with Apple’s policy objectives while using Apple’s IT property. Moreover, under a restricted understanding of the importance of IT resources for employee communication, the impact of the policy on employees’ Section 7 rights may be minimal. Apple’s policy does not prohibit lawful discussion of wages by other means, such as in person, through personal communication devices, such as cell phones, or on widely available non-work communications systems such as social media or Discord.
Apple’s Discriminatory Enforcement of the Slack Policy
Although Apple’s Slack policy itself remains lawful, at least for the time being, Apple’s discriminatory enforcement of the policy is unlawful. The Board recognizes “proof of discrimination” as an exception to an employer’s ability to restrict use of its communications systems by employees. Even under the most restrictive interpretation of discriminating between activity that is protected by the NLRA and activity that is unprotected, Apple has likely violated Section 8(a)(1) of the Act. Apple has discriminated as to which type of protected Section 7 activity its employees may engage in on Slack. The Board consistently holds, regardless of appointing administration, that “[u]nlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status.” There is discrimination where the employer draws a line between “permitted and prohibited activities on Section 7 grounds,” such as where an employer allows email solicitation from one union but not another.
The Apple employees point to evidence that Apple permitted creation of a Slack channel titled “remote-work-advocacy,” for the purpose of advocating for working from home. Advocating to work from home, especially if it is for the safety and health of employees due to the current Covid-19 pandemic, constitutes concerted activity for employees’ mutual aid that is protected by Section 7. As such, Apple has permitted one type of Section 7 activity to be conducted utilizing its Slack channels but has prohibited another Section 7 activity — discussion of employee wages. By so doing, Apple has discriminated as to what type of Section 7 activity the employees may engage in. Therefore, Apple has violated Section 8(a)(1) of the NLRA by infringing on its employees’ Section 7 rights by discriminating as to which type of Section 7 activity they may engage in on Apple’s Slack channels.
Adopting New Precedent that Accounts for New Pandemic-Induced Working Conditions
When the Obama Board addresses these cases against Apple, or similar policies prohibiting the use of employer communications systems, they will likely hold that employees have a right to use these systems for protected activity, such as discussion of wages. Before the Trump Board held in Ceasar’s Entertainment that employers had an unrestricted right to prohibit use of their communications systems for non-business purposes, the Board recognized, in a 2014 case, Purple Communications, that employers must permit employees to use email to discuss terms and conditions of employment. (The Trump Board reversed the Purple Communications decision.) The current General Counsel of the NLRB has issued a Memorandum indicating the Board will carefully assess “cases involving employees’ use of other electronic platforms in the workplace, i.e. Discord, Slack, Groupme, or other employer communication systems” to determine whether they constitute protected concerted activity under the NLRA.
In Purple Communications, long before the pandemic and the increasing use of communications systems that are more multi-faceted than email, the Board correctly recognized: “The necessity of communication among employees as a foundation for the exercise of their Section 7 rights can hardly be overstated. There is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings. In many workplaces, email has effectively become a ‘natural gathering place,’ pervasively used for employee-to employee conversations. Neither the fact that email exists in a virtual (rather than physical) space, nor the fact that it allows conversations to multiply and spread more quickly than face-to-face communication, reduces its centrality to employees’ discussions, including their Section 7-protected discussions about terms and conditions of employment. If anything, email’s effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication.”
The pandemic has hastened the pre-pandemic workplace trend by which many employees communicate primarily via communications systems rather than in person at the workplace. The pandemic has also necessitated for reasons of safety that many employees work primarily or even solely from home, rather than at a physical workplace. Given these workplace conditions, many employees are far more likely to use email and more sophisticated employer provided communication tools, like Zoom, Slack, or Microsoft Teams, than in person discussion or leafletting, to work together to better their employment terms and conditions. It only makes sense that, given the current nature of work, the NLRA protects employees’ right to act together to better their terms and conditions of employment online via employer communications systems as well as in person.
