NLRB will revisit employees' access to their employer’s email system

In a notice [PDF] issued August 1, the National Labor Relations Board invites the filing of briefs on whether the Board should adhere to, modify, or overrule Purple Communications, Inc., 361 NLRB 1050 (2014). In Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act. In doing so, the majority in Purple Communications overruled Register Guard, 351 NLRB 1110 (2007), which held that while union-related communications cannot be banned because they are union-related, facially neutral policies regarding the permissible uses of employers’ email systems are not rendered unlawful simply because they have the incidental effect of limiting the use of those systems for union–related communications. In addition, while Purple Communications and Register Guard addressed only email systems, the Board is also inviting comment on the standard it should apply to evaluate policies governing the use of employer-owned computer resources other than email.

Here are the specific questions being asked:

1. Should the Board adhere to, modify, or overrule Purple Communications?

2. If you believe the Board should overrule Purple Communications, what standard should the Board adopt in its stead? Should the Board return to the holding of Register Guard or adopt some other standard?

3. If the Board were to return to the holding of Register Guard, should it carve out exceptions for circumstances that limit employees’ ability to communicate with each other through means other than their employer’s email system (e.g., a scattered workforce, facilities located in areas that lack broadband access)? If so, should the Board specify such circumstances in advance or leave them to be determined on a case-by-case basis?

4. The policy at issue in this case applies to employees’ use of the Respondent’s “[c]omputer resources.” Until now, the Board has limited its holdings to employer email systems. Should the Board apply a different standard to the use of computer resources other than email? If so, what should that standard be? Or should it apply whatever standard the Board adopts for the use of employer email systems to other types of electronic communications (e.g., instant messages, texts, postings on social media) when made by employees using employer-owned equipment?