Wyatt Employment Law Report


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NLRB Rules Employers Must Allow Employees to Use Its Email System for Union Activities

By Edwin S. Hopson

Recently the NLRB issued its decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), holding that an employer’s email system must be made available to its employees for the purpose of engaging in union activity Professional-Emails-are-Importantand other protected activity under Section 7 of the National Labor Relations Act, so long as such use occurs during non-working time. The decision, rendered by the three Democrat Members, was sharply criticized by the two dissenting Republican Members on the Board. The decision in this case also overruled the Register Guard case issued in 2007, which had held such use of an employer’s email system not protected where the employer’s email policy prohibited such use.

An employer can avoid this new rule “by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”

Many employers have in their employee handbooks or policies provisions which restrict the use of the employer’s email system to strictly business use. Those policies now run likely afoul of the NLRB’s new rule.

Therefore, to be safe, employers should review their email policies carefully to determine whether changes should be made to them.


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NLRB Inviting Briefs on Whether Union Supporters May Use Company Email for Union Activities

By Edwin S. Hopson

In Register Guard, 351 NLRB 1110 (2007) the Board (a majority of whom were Republicans), enforced an employer policy which prohibited employees from using its email system for non-work-related purposed. It stated then that “… employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.”

On October 24, 2013, an Administrative Law Judge issued a decision in Purple Communications, Inc., 21-CA-095151, 21-RC-091531, and 21-RC-091584, dismissing the General Counsel’s claim that the employer violated Section 8(a)(1) of the Act by maintaining a policy prohibiting personal use of its electronic equipment and systems. The ALJ based his decision on Register Guard. The General Counsel and the charging party labor organization filed exceptions requesting that the NLRB overrule Register Guard.

On May 1, 2014, the Board announced that it was inviting the parties and amici to file briefs and address the following 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?
  2. 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.
  3. 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?
  4. 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?
  5. 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 parties and amici were invited by the Board “to submit empirical and other evidence.” Briefs are due no later than June 16, 2014.