By Nelson Cary and Eric Leist
Last Wednesday, the NLRB issued a notice and invitation for parties to file briefs to address how the board should treat its previous decision Purple Communications, Inc., 361 N.L.R.B. 1050 (2014). As we explained when Purple Communications was decided, the NLRB held that employees who were given access to their employer’s e-mail system for work-related purposes have a right to use that system for statutorily protected communications during non-working time. A similar case has now come before the board, Caesars Entertainment Corporation, and the NLRB has invited interested parties to file briefs as to whether it should adhere to, modify, or overrule Purple Communications.
The governing rule from Purple Communications replaced the one from Register Guard, 351 N.L.R.B. 1110 (2007). Under Register Guard, employers could lawfully limit employees’ use of their email system for certain non-business-related activities, including statutorily protected communications, assuming that it did so in a non-discriminatory fashion.
Purple Communications, Inc. held that the Register Guard rule was “clearly incorrect,” and overruled it. The NLRB reasoned that the old rule gave too much consideration to employers’ property rights and not enough to employees’ rights to communicate about their employment. The NLRB added that the old rule did not properly take into account the importance of e-mail as a vital means of communication. It also drew a distinction between bulletin boards and copiers, on the one hand, and e-mail systems on the other hand, given long-established NLRB precedent permitting employers to prohibit non-business uses of the former.
Although the NLRB is primarily seeking input on how it should treat the Purple Communications decision, it is also seeking feedback on several related topics. Thus, if a party filing a brief believes that the prior decision should be overruled, the NLRB wants to know what standard should be adopted in its place, including whether a return to the Register Guard standard is correct. Furthermore, if the NLRB does return to the Register Guard standard, it wants to know whether it should carve out exceptions for employees who would otherwise have limited means to communicate with other employees. Finally, the NLRB also wants to know whether it should apply this standard to other computer resources, such as instant or text messages, and social media postings.
Any party interested in submitting brief must do so on or before September 5, 2018.
For the labor professional, the NLRB’s next steps should be watched closely. The invitation to file briefs is certainly a sign that reversal of Purple Communications may be possible, but that result is certainly not cast in stone. Nonetheless, the NLRB’s willingness to revisit the issue is welcome news for employers looking to maintain greater control over how and when employees may use property the employer owns for non-business purposes.