Employment LawScene Alert: Will Employees Soon Be Permitted to Use Company E-Mail for Union Organizing Activities?

Recent activity by the National Labor Relations Board (“NLRB”) suggests that the Board may overturn a 2007 landmark decision in which it held that employees have no statutory right to use their employers’ electronic communications systems for non-business purposes, including union organization and other concerted activities for the purpose of collective bargaining or other mutual aid or protection (also known as “Section 7 rights”).  See 29 U.S.C. § 157.  The Board’s 2007 landmark decision is known as the “Register Guard decision”.

On April 30, 2014, the NLRB issued a Notice and Invitation to File Briefs in the matter of Purple Communications, Inc., inviting parties and other interested individuals and organizations to answer the question of whether the Board should reconsider or overrule its 2007 decision in Register Guard. The NLRB invites briefing and evidence to address the following questions:

• 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 activity?
• If the Board overrules Register Guard, what standards, restrictions, and factors should be applied to employee access to employers’ electronic communications systems?
• To what extent and how should the impact on the employer affect the issue?
• Do employees’ personal electronic devices, social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ rights under the NLRA to communicate about work-related matters?
• Are there any other technological issues regarding email or other electronic communications systems or any relevant technological changes that have occurred since the Board’s 2007 Register Guard decision that should be taken into account?

If the NLRB overrules its Register Guard decision, employees may be permitted to use employers’ email and communications systems for Section 7 activity, including union organizing activities.

Employers should pay close attention to the Board’s decision in Purple Communications, Inc., as it could have a significant impact on employers’ policies and practices regarding employees’ personal use of company communications systems.  We will keep you informed when the Board issues its decision.