United States: NLRB Accuses USPS Of Failing To Bargain Data Breach Response

The National Labor Relations Board recently issued a complaint against the United States Postal Service alleging that USPS failed to furnish information and bargain over its response to a data breach that compromised sensitive employee information. This case raises the novel question of whether and under what circumstances an employer must bargain over its response to a data breach that affects unionized employee information—and potentially adds one more legal challenge that employers may face in the event of data breaches.

On November 10, 2014, USPS announced that it had experienced a cyber breach potentially compromising some 800,000 employee records—including names, addresses, dates of birth, and Social Security numbers. USPS offered all affected employees, some of whom were union members, free credit monitoring and fraud insurance services for one year. The American Postal Workers Union filed two charges against USPS in November and December 2014, alleging that USPS "did not give the Union advance notice that would enable it to negotiate over the impacts and effects of the data breach on employees."

In its complaint, the NLRB alleges that USPS failed to bargain collectively and in good faith in violation of sections 8(a)(1) and (5) of the National Labor Relations Act because it failed to furnish certain information that the union requested after the data breach, and it offered unionized employees credit monitoring and fraud insurance services without affording the union an opportunity to bargain regarding those items. As a remedy, citing USPS's "extensive history" of unfair labor practices, the NLRB asks the Board to order USPS to bargain with the union over the effects of a cyber security breach on bargaining unit members, submit progress reports on the bargaining to the region, and pay union negotiators who are also USPS employees for their time spent bargaining over these issues. Notably, however, the complaint does not appear to ask USPS to rescind the credit monitoring and fraud insurance services that USPS provided to protect its employees.

The key issue in this case will be whether USPS had an obligation to bargain with the union over its response to the data breach, at least to the extent that the breach response affected unionized employees. The NLRB alleges that USPS had an obligation to bargain over the "effects of a cyber security breach on the unit" as well as USPS's response in providing no-cost credit monitoring services and fraud insurance to employees. The NLRB alleges that these matters "relate[] to the wages, hours, and other terms and conditions of employment" and are therefore "mandatory subject[s] for the purposes of collective bargaining." The Board's complaint does not further elaborate on its theory. The case is currently scheduled for a trial on May 11, 2015.

This case has significant implications for unionized employers, given the time-sensitive nature of addressing data breaches. While this case is still developing, employers should be cognizant that their actions following a data breach may now implicate the NLRA, in addition to other laws, and consider the impact of the NLRA in their data breach response planning. Moreover, because data breach responses must generally be swift to be effective, employers with existing unions should consider obtaining sufficient discretion in advance, so that they can act with the speed that breach responses typically require without running the risk of a successful unfair labor practice complaint.

With respect to the first point, each employer should review the types of employee information that it collects and how that information is stored. Electronic systems should have the requisite protections and safety precautions in place to protect against data breaches, as well as technology that detects cyber breaches. Because many general liability insurance policies do not cover cyber events, companies may want to consider other types of insurance to limit risk, including but not limited to cyber breach insurance, third-party/liability coverage, remediation coverage, or risk management coverage. An employer should also develop a response plan to enable it to react to a breach quickly, efficiently, and without significant disturbances to its business. Companies may consider what steps need to be taken for each type of stored data, from confidential employee information to intellectual property.

As to the second point, while it is yet to be seen whether an employer must bargain with a union over any remedial action after a data breach, employers with open contracts, or who are renegotiating contracts soon, should negotiate language that gives them the broadest possible discretion in responding to a data breach affecting employee information, including the right to delay notification of employees at the request of law enforcement. Such language may include certain specific remedies, such as free credit monitoring services, that the employer will agree to provide in the event of a breach, without having to engage in bargaining with the union before implementing the agreed-upon remedy. If the collective bargaining agreement incorporates company policies, the employer should consider adding a data breach protocol to its policies and discussing the policy with the union before a data breach occurs. Employers should also consider how and when they will notify the unions representing their employees of any actions to be taken in response to a breach affecting union members, in order to minimize claims that they failed to provide appropriate information to the unions.

Both employers and unions alike will be paying careful attention to how this case is resolved, but employers can expect that this case will make unions more attuned to the potential issues that arise when a data breach occurs and more likely to use the NLRB as one potential avenue for legal action in the event of a breach.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Mauricio F. Paez
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions