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NLRB Zeroes In on Rules Forbidding Personal Use of Company Email

On May 2, 2014 by Schnader in Labor and Employment

By Scott J. Wenner

To the surprise of few observers, the National Labor Relations Board served notice on May 1 that it will reconsider whether employers can bar employee use of company email for union organizing and other collective purposes. NLRB General Counsel Robert F. Griffin, Jr., has asked the Board to overrule its 2007 Register Guard decision, which held that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.”

Griffin made clear upon taking office last November his intention to perpetuate his predecessor’s campaign to inject the Labor Board more aggressively into non-union workplaces. Already subject to increasingly frequent NLRB intervention on behalf of non-union employees are matters such as social media rules and employee handbooks that the Board determines are too restrictive and interfere with employees’ rights to raise collective issues concerning terms and conditions of employment.

It was Griffin’s predecessor, Lafe Solomon, who spearheaded the advance into non-union workplaces during the Obama Administration’s first term. Indeed, before Griffin’s arrival the General Counsel’s office argued unsuccessfully to an administrative law judge (ALJ) that Register Guard should be overruled in a case entitled Purple Communications, Inc. In Purple Communications, the ALJ relied on Register Guard in dismissing the General Counsel’s contention that the employer’s policy prohibiting personal use of its electronic equipment and systems violated the Section 7 rights of its employees and Section 8(a)(1) of the National Labor Relations Act.

The General Counsel, joined by a union, asked the Board to review the ALJ’s Purple Communications for the purpose of overruling Register Guard and requiring employers to permit employees who use company email systems in their work to permit their personal use for Section 7 purposes as well. On May 1, the NLRB published a Notice and Invitation to File Briefs in which the public was invited to address any or all of five issues in a legal brief, and was invited to submit empirical and other evidence that supported the positions stated. The Notice is available here. In summary form the issues that the Board has identified for briefing are:

  1. Should the Board reconsider its conclusion in Register Guard?
  2. If so, 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. To what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect how the above issues are decided?
  4. Do employee personal electronic devices, social media accounts and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ rights to communicate about work-related matters? If so, how?
  5. What technological issues and what changes in technology that have taken place since the Board’s 2007 Register Guard decision should the Board consider?  How should these affect Board’s decision?

Initial briefs are due by June 16 and reply briefs must be filed by June 30.

Importance of this Development

In some respects, the Board’s reconsideration of its earlier decision on the right of employers to control their electronic communications systems not only was predictable but also was inevitable in view of the precedent set by its recent stance on social media and other employer policies in the non-union environment. It may appear to be a small step logically from wresting away strict control over social media from employers to a similar incursion into control over email and other network communications. After all, Section 7 rights are Section 7 rights regardless of whether a communication about conditions of employment is made on Twitter or directly by email.

In practice, however, this is no small step; the implications of ceding control over an employer’s private direct communications system are vast and nuanced, and may be too varied and complex to permit the form of studied, sober consideration the Board has invited in little more than one month’s time. Just as the employer community began gearing up for a battle over these issues long before yesterday, it is not too early for prudent employers to begin considering how they will cope with a decision that throws open their email network to union organizing or other forms of concerted activity over perceived conditions of employment.