The National Labor Relations Board has invited briefs on whether it should modify or overrule its rule under the National Labor Relations Act, established in Purple Communications, that employers must permit employees who have been provided access to their employer’s email system to use that system for statutorily protected communications on their non-working time. Rio All-Suites Hotel and Casino, No. 28-CA-060841 (Aug. 1, 2018).

The Board also asked whether the Board’s standard should apply to computer resources beyond email systems, such as instant messages, text messages, postings on social media, and the like.

In Purple Communications, 361 NLRB 1050 (2014), the Board also decided that an employer may restrict the right to use of its email system if it can demonstrate that special circumstances exist to maintain production or discipline.

The Board had overruled Register Guard, 351 NLRB 1110 (2007), in Purple Communications. The Board held in Register Guard that an employee does not have a statutory right to use his employer’s email system for Section 7 activity. It decided that an employer may impose Section 7-neutral restrictions on employees’ non-work-related uses of its email systems, even if those restrictions limit the use of its systems for union or other protected communications.

In Rio All-Suites Hotel and Casino, the rule in question (as promulgated and currently maintained) barred employees from “send[ing] chain letters or other forms of non-business information.” Administrative Law Judge Mara-Louise Anzalone held that, insofar as the rule banned all use of the employer’s email system for non-business distribution and solicitation, it violated Purple Communications. The ALJ further found that no special circumstances existed. The employer excepted (appealed), asking the Board to overrule Purple Communications and, indirectly, to return to the Register Guard standard.

The Board wants briefs to address the following questions:

  1. Should the Board adhere to, modify, or overrule Purple Communications?
  2. What standard should the Board adopt instead of Purple Communications?
  3. Should the Board return to the holding of Register Guard or adopt another standard?
  4. If the Board returns to the holding of Register Guard, should it make exceptions for circumstances that limit employees’ ability to communicate with each other through means other than their employer’s email system (e.g., because of a scattered workforce or facilities located in areas without broadband access)? If so, should it specify such circumstances or leave them to be determined on a case-by-case basis?
  5. Should the Board apply a different standard to the use of computer resources other than email and what should that standard be?

NLRB Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel joined to issue the Notice and Invitation to File Briefs. Members Mark Gaston Pearce and Lauren McFerran dissented. Briefs must be filed by September 5, 2018. Responsive briefs may be filed by September 20, 2018.

Jackson Lewis is available to file amicus briefs on behalf of employers and employer associations in connection with this Notice and Invitation to File Briefs.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.