In a development of importance to both union and non-union employers, the NLRB General Counsel has asked the NLRB to overrule its 2007 decision in Register Guard, 351 NLRB 1110 (2007). In Register Guard, the Board had held that employers could bar employee use of the employer’s email for non-business purposes, including union or other communications protected under Section 7 of the National Labor Relations Act, so long as the employer did so on a non-discriminatory basis.
The General Counsel now seeks a new rule that employees may use employer email for union or other Section 7 protected purposes so long as doing so does not impede production or workplace discipline. The Board has issued a notice the case, Purple Communications, Inc., Case Nos. 21-CA-095151, 21-RC-091531 and 21-RC-091584, inviting interested parties to file amicus briefs by June 16, 2014.
In its notice, the Board asked the amicus briefs to 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 Board also invited amici to submit “empirical and other evidence”, which most likely means studies showing how employees use email in the workplace, how much productive time is lost because of over-use of email, and the like. It is also possible the Board’s eventual decision could have an impact on other types of employee communications through various electronic devices and social media.
It has long been anticipated that the new Board and General Counsel would want to revisit the Register Guard decision. Now that the time has come, it will be important for employers to engage as amici in an effort to shape the outcome and provide all Board members — including possibly dissenting ones — with both legal analysis and practical and operational considerations that should inform the Board’s policy choices in this important area.