The NLRB continuing to chip away at employers’ rights; employers may lose control over company email

On May 1, 2014, the National Labor Relations Board (“NLRB” or “Board”) issued a news release inviting amicus briefs regarding its decision in Purple Communications, Inc., on the issue of overruling existing Board precedent on employees’ use of company email systems for union activity. In Purple Communications, Inc., an Administrative Law Judge issued a decision dismissing the General Counsel’s allegation that the employer’s policy prohibiting personal use of the employer’s electronic equipment and systems violated Section 8(a) (1) of the Act.

Under current NLRB precedent, “employees have no statutory right to use the[ir] Employer’s email system for Section 7 purposes.” Register Guard, 351 NLRB 1110 (2007). Thus, under this standard, employers are allowed to implement policies which restrict employees’ use of an employer’s email system for business purposes only, therefore, preventing employees from using the email system for union organizing or union related activities.

Currently in Purple Communications, Inc., the General Counsel and Charging Party have appealed the Administrative Law Judges decision asking the Board to overrule Register Guard by adopting a rule which would allow employees to use their employer’s email for Section 7 activity, such as union organizing. In order to assist the Board in making this determination, the Board is inviting amicus briefs on the issue. Specifically, the Board invites briefs that answer the following five (5) questions:

  1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
  1. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions if any may an employer place on such access, and what factors are relevant to such restrictions?
  1. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
  1. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work- related matters? If so, how?
  1. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since register Guard was decided. How should these affect the Board’s decision?

The initial briefs on the Board’s inquiries are due to the Board on June 16, 2014. If the Board overrules Register Guard, employers will be required to revise their email usage policies in order to allow employees to utilize the email system for Section 7 activities. We will monitor the Board’s decision and provide an update on this matter as soon as further information becomes available. If you have questions regarding the potential impact this potential shift in Board law has on your business, contact the Labor Lawyers at McMahon Berger, P.C., at 314 567 7350.

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