NLRB Invites Briefs on Whether Employers May Prohibit Employee Use of Work Email for NLRA-Protected Activity

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

May 2, 2014

The National Labor Relations Board (NLRB) announced yesterday that it is inviting briefs on whether it should adopt a rule providing that "employees who are permitted to use their employer's email for work purposes have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline." Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to engage in concerted protected activity - the right to communicate and work together to improve their terms and conditions of employment.

This invitation comes on the heels of an administrative law judge's decision in Purple Communications, Inc.(Cases 21-CA-095151; 21-RC-091531; and 21-RC-091584), which dismissed the General Counsel's allegation that an employer violated the NLRA by prohibiting employees from using its electronic systems for personal use. In response to this decision, the General Counsel and the Communication of Workers of America, AFL-CIO, has asked the NLRB to adopt the new rule and overrule the existing law under Register Guard, 351 NLRB 110 (2007), that employees do not have a statutory right to use their employer's electronic communication systems, including email system, for engaging in activity protected under the NLRA.

In order to help it consider whether it should adopt a rule giving employees the right to use their employer's email for Section 7 purposes, the NLRB invites the parties in Purple Communications, Inc. and other interested persons to address the following questions:

  1. Should the NLRB reconsider its decision in Register Guard that employees do not have the right to use their employer's electronic system for Section 7 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to an 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. How, and to what extent, should the impact on an employer of its employees' use of its 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' right 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 communication systems that the NLRB 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 NLRB's decision?

Briefs must be submitted by June 16, 2014.