8.3.18

Employers may soon learn from the National Labor Relations Board that they once again can control their own email and other electronic communications systems. On August 1, the Board published an invitation for briefs from interested parties regarding whether the Board’s 2014 decision in Purple Communications should be overruled or the rule of that decision changed. The invitation comes in a case currently pending before the Board, Caesars Entertainment Corporation, d/b/a Rio All-Suites Hotel and Casino. In the Caesars case, the employer is challenging a decision by an NLRB Administrative Law Judge, which said that the employer’s rule prohibiting employees from using its email system for non-business purposes violated Section 8(a)(1) of the National Labor Relations Act. The invitation asks “whether the Board should adhere to, modify, or overrule Purple Communications.”

Purple Communications

The Obama-era Board decided in Purple Communications that, with limited exceptions, employer restrictions on employees’ non-business use of company email systems during non-working time was an unfair labor practice if employees also used the systems for business purposes. This meant that employees covered by the NLRA were presumptively entitled to access an employer's email systems to engage in protected concerted activity, including union organizing, during their non-working time as long as they also had access to the email system for business communication. According to the Board, restrictions on non-business use could interfere with employees’ ability to exercise their Section 7 rights, and therefore were overbroad and unlawful.

Purple Communications overruled a 2007 decision by a Bush-era Board in Register Guard. The Purple Communications majority decided that the Board in Register Guard had improperly weighed the competing interests between employer property rights and employee Section 7 rights, given the realities of the modern workplace in which email is a normal mode of communication. The Board majority in Purple Communications asserted that email was the modern-day equivalent of the workplace "water cooler" for employee communications, and that employees have a right to communicate in that space, absent a showing that employer-imposed restrictions are necessary to maintain production and discipline.

The two Republican Members of the Purple Communications Board -- Philip Miscimarra and Harry Johnson -- dissented, demonstrating the partisan split in Purple Communications. They attacked the majority ruling on numerous grounds, arguing (1) that the change from Register Guard was unneeded because employees had multiple means of communication, electronic and otherwise, in the modern workplace; (2) that the decision was an unwarranted intrusion on the employer's well-established rights to restrict use of its property based on convenience and to have a productive workforce; (3) that the standard announced by the Board in Purple Communications was confusing and difficult to apply; (4) that the decision would not, in fact, be limited simply to employer email systems, but instead, would be expanded over time to other modes of communication; and (5) that the Board's decision violated the free speech protections of the First Amendment to the U.S. Constitution.

The Purple Communications decision is awaiting review before the U.S. Court of Appeals for the Ninth Circuit.

Outlook

The invitation for briefs is a strong indication that the Trump-era Board may return to the standard of Register Guard or come up with a new standard. Many commentators expect the Board to rule that employers may prohibit employees from using company email for non-business purposes, absent evidence of discrimination. Such a ruling would restore control of email systems to employers, who have legal responsibility for their proper use. Employers should have the right to prohibit employees from sending abusive, discriminatory, or obscene email, or engaging in unlawful harassment.

Although Register Guard and Purple Communications concerned email systems, the rulings could readily be extended to other electronic communication systems owned or controlled by employers. The recent invitation for briefs requests comments on this issue.

The briefs

The briefs invited by the NLRB are due on or before September 5. If you would like for Constangy to assist in submitting a brief on behalf of your organization or coalition of organizations, please contact any member of our Labor Relations Practice Group.

For a printer-friendly copy, click here.

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