Virginia has enacted a new law that is intended to enhance employee protections, particularly during union organizing drives in the Commonwealth.  Effective July 1, 2013, the law limits those situations in which an employer may be required to disclose certain information to third parties about current and former employees.  Delegate Barbara Comstock, who spearheaded this law, calls it “...a victory for the rights of workers and for protecting employees in the workplace.”

The bill, entitled “Keeping Employees’ Emails and Phones (KEEP) Secure Act,” carries the title and tracks the language of a bill introduced in the U.S. Congress in February 2012 by Rep. Sandy Adams (R-FL), which would have prevented the National Labor Relations Board (the NLRB or Board) from implementing a rule requiring employers to provide to a union or the Board employee telephone numbers or email addresses. The federal bill did not pass. The Virginia law provides that employers cannot be “required to release, communicate, or distribute” to third parties personal identifying information (defined as home and mobile telephone numbers, email addresses, shift times and work schedules) about current or former employees, unless required by federal or state law, ordered by a court of competent jurisdiction, required pursuant to a warrant, or required by a subpoena or discovery in a civil case.  These exceptions may largely swallow the rule, particularly if the NLRB changes the election procedures under the National Labor Relations Act (the NLRA) to include, among other things, a requirement that employers disclose employees’ phone numbers and email addresses to labor organizations once an election has been ordered.

Anticipated Legal Challenges

KEEP is an apparent response to an NLRB representation election rule that was proposed in June 2011, initially requiring employers to provide a final Excelsior list that includes employees’ names, addresses, telephone numbers, and email addresses to the union within two days after the representative election is scheduled.  Although the NLRB historically has held that unions engaged in organizing campaigns are entitled to employee lists, they have only required that employers provide names and addresses of all eligible bargaining unit employees after an election is scheduled.  The proposed rule would have significantly expanded the amount of personal information that employers are required to provide.  The final rule, which was issued in December 2011 and was subsequently enjoined, does not contain these enhanced provisions regarding Excelsior lists; however, NLRB Chairman Mark Pearce has stated his intention to continue seeking these additional rule changes.  An update on this issue, which was recently addressed at a Senate HELP Committee Hearing, can be found here.

While KEEP’s strict definition of  “personal identifying information” does not conflict with the existing Excelsior rule, if the NLRB changes this rule as proposed, KEEP could become the subject of a preemption battle, focusing on whether such disclosures are “required” by federal law and therefore within the exemption.

Recommendations for Virginia Employers

Pending the outcome of any court challenges, employers in Virginia should consult with counsel to ensure that their practices and policies comply with the new law.  Employers also should monitor developments at the NLRB and in the courts, and revise their policies concerning the confidentiality of personal data and work schedules, and access to personnel files, and similar policies commonly contained in employee handbooks and manuals to ensure information is not released in violation of KEEP.  Employers also should provide training to human resources professionals who are charged with overseeing employee files to ensure that they understand these new obligations.

Additionally, employers should be mindful that KEEP does not prohibit the disclosure of private employee data if an exception does not apply; it merely states employers cannot be “required” to release such information.  Therefore, employers have the discretion to decide their internal policies regarding voluntary disclosure of employee data in circumstances not covered by the Act.  That said, KEEP articulates a public policy of the Commonwealth of Virginia, which means it may be cited by plaintiffs’ attorneys in negligence cases and public policy wrongful discharge cases, among others.  It will be important to ensure that human resources managers are aware of the terms of the statute.