NLRB Seeking Comments on Employee Email Use

In 2007, the National Labor Relations Board (NLRB) decided in a split decision that employees do not have a statutory right to use an employer’s email system to engage in activities protected under federal labor law.  Relying on this decision, known as Register Guard, many employers have since adopted policies limiting the extent to which employees may use employer-provided email and communications systems for protected concerted activities.

Now, in a case currently pending before the NLRB, the Board has signaled it is considering whether to revisit its holding in Register Guard.  At issue in the case is a decision by an administrative law judge to dismiss an allegation that the employer, Purple Communications, Inc., committed an unfair labor practice by maintaining a rule prohibiting employees from using company email for non-work-related purposes. Disappointed with the judge’s ruling, the NLRB General Counsel filed an exception and requested that the Board overrule the Register Guard decision.
 
The Board appears to have taken the General Counsel’s request to heart and has invited the parties in Purple Communications, Inc., as well as other interested parties, to submit briefs on the issue.  Specifically, the Board has requested parties 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?

While the invitation for comments on the continuing viability of Register Guard is itself notable, it is also noteworthy that the NLRB has asked parties to comment on the decision in light of how technology, and the uses of that technology, has changed in the last seven years.

The deadline for submitting briefs is June 16, 2014.