The National Labor Relations Board’s office of the General Counsel is urging the Board to overrule its decision in Purple Communications, Inc., 361 NLRB 1050 (2014), which allowed employees to use employer email systems for NLRA Section 7 purposes (e.g., union organizing and protected concerted activity) during nonworking time.
On August 1, 2018, the Board invited briefs on whether the Board should adhere to, modify, or overrule Purple Communications, in connection with another case, Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, No. 28-CA-060841.
In its September 14, 2018, brief, the General Counsel’s office advised the Board to abandon Purple Communications and return to the Register Guard standard, which allowed employers to prohibit, in a nondiscriminatory manner, the use of their email systems. Register Guard, 351 NLRB 1110 (2007).
In support of its position, the General Counsel’s office relied on a “variety of legal and practical reasons.” First, it argued that Purple Communications contradicted decades of established precedent and “impermissibly created a right by employees to use employer-owned and -financed communication systems, even where employees possess a plethora of other means of communication.” The General Counsel’s office noted that the employees in Purple Communications had alternative methods of communication, including their personal cellphones.
Second, the General Counsel’s office raised First Amendment concerns, invoking the Supreme Court’s decision in Janus v. AFSCME Council 31, No. 16-1466 (June 27, 2018). According to the General Counsel’s brief, a presumptive right to use employer email systems for Section 7 purposes “raises First Amendment concerns because the Board, as a government entity, may not compel an employer to subsidize hostile speech by requiring the employer to pay for an email system to send, receive, and store speech with which it does not agree.”
Finally, the General Counsel’s office asserted the Purple Communications standard imposes significant burdens on employers, including lost productivity, threats to digital security, compromises to proprietary and confidential information, and increased costs of monitoring email systems. These burdens are unnecessary, because of other “easier and more efficient means for employees to communicate with one another,” such as smartphones, according to the brief.
In restoring the Register Guard standard, the General Counsel’s office recommended a limited exception in circumstances where an employer email system is the only means of communication. The General Counsel’s office noted such an exception could exist in “rare” workplaces with no access to face-to-face communication and no cellphone coverage. Personal email, text messaging, and social media, however, would constitute viable alternatives for employees to communicate for Section 7 purposes.
The Board’s invitation for briefs concerning Purple Communications remains open until October 5, 2018. The Board’s decision in Purple Communications also is on appeal before the Ninth Circuit.
Jackson Lewis is available to prepare amicus briefs to the NLRB on this very important issue. If you would like to file an amicus brief, please contact the Jackson Lewis attorney with whom you regularly work.