Employment Law Daily NLRB reconsidering Purple Communications employee email ruling
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Friday, August 3, 2018

NLRB reconsidering Purple Communications employee email ruling

The National Labor Relations Board has issued an invitation for briefs on whether it should adhere to, modify, or overrule Purple Communications, Inc. (361 NLRB 1050 (2014)). There, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by NLRA Section 7. The holding of the Board majority overruled Register Guard (351 NLRB 1110 (2007)), which had held that while union-related communications cannot be banned because they are union-related, facially neutral policies regarding the permissible uses of employers’ email systems are not rendered unlawful simply because they have the “incidental” effect of limiting the use of those systems for union-related communications.

Other computer resources. Although Purple Communications and Register Guard addressed only email systems, the Board is also inviting comment on the standard it should apply to evaluate policies governing the use of employer-owned computer resources other than email.

The case in which the Board has invited briefing is Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, 28-CA-060841. Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in issuing the Notice and Invitation to File Briefs. Members Mark Gaston Pearce and Lauren McFerran dissented.

Briefing questions. The Board is inviting briefs that address the following questions:

1.

Should the Board adhere to, modify, or overrule Purple Communications?

2.

If you believe the Board should overrule Purple Communications, what standard should the Board adopt in its stead? Should the Board return to the holding of Register Guard or adopt some other standard?

3.

If the Board were to return to the holding of Register Guard, should it carve out exceptions for circumstances that limit employees’ ability to communicate with each other through means other than their employer’s email system (e.g., a scattered workforce, facilities located in areas that lack broadband access)? If so, should the Board specify such circumstances in advance or leave them to be determined on a case-by-case basis?

4.

The policy at issue in this case applies to employees’ use of the Respondent’s “[c]omputer resources.” Until now, the Board has limited its holdings to employer email systems. Should the Board apply a different standard to the use of computer resources other than email? If so, what should that standard be? Or should it apply whatever standard the Board adopts for the use of employer email systems to other types of electronic communications (e.g., instant messages, texts, postings on social media) when made by employees using employer-owned equipment?

In responding to these questions, the Board is inviting the parties and amici to submit empirical evidence, including anecdotes or descriptions of experiences that the Board may find useful in deciding whether to adhere to Purple Communications or adopt another standard.

Briefs from parties and interested amici must be submitted on or before September 5, 2018. A list of the participating parties is available here.

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