By Kelline R. Linton,
The NLRB has announced it will decide whether employers must permit employees to use workplace email for union purposes.
This week, the Board issued a notice and invitation to file briefs in Purple Communications, Inc. (Bogas, Oct. 24, 2013), a case in which the administrative law judge permitted the employer to enforce an email policy that prohibited employee use of company equipment for anything other than business purposes. The judge had followed established precedent found in Register-Guard, 351 NLRB 1110 (2007), the landmark NLRB opinion that held employees did not have a statutory right to use their union or nonunion employers’ email systems for union organizing. The NLRB’s notice indicates that the Board may now overturn this decision, and such a move would be consistent with the Board’s proposed regulations to expedite union elections and aid organizing efforts.
What does this mean for employers? A reversal of Register-Guard would dramatically impact all employers. A reversal could:
• jeopardize employers’ rights to monitor their own email systems (i.e., to prohibit sexual harassment, ensure productivity, investigate code of conduct violations, and police trade secret theft);
• subject employers’ electronic communication systems to potential disruptive activities, including recruitment efforts from plaintiffs’ lawyers; and
• allow employees or unions to use company email systems to declare a work stoppage or other coordinated, subversive tactics.
The Board has invited all interested groups to file briefing on these issues by June 16, 2014. Stay tuned for any developments on this issue, and call us if you have any questions.