Employers may eventually see a change in how they can restrict the use of their e-mail and other communications systems for union organizing now that the National Labor Relations Board (NLRB) is requesting comments on what standard it should apply.
The Board issued a notice on August 1 inviting briefs on whether it should “adhere to, modify, or overrule Purple Communications, Inc.,” the 2014 case that held that employees who have been given access to their employer’s e-mail 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, the section that gives employees the right to engage in concerted activity, such as union organizing, and to discuss the terms and conditions of employment.
The Purple Communications decision overruled the 2007 Register Guard decision, which held that while union-related communications cannot be banned because they are union-related, neutral policies regarding the permissible uses of employer-provided e-mail aren’t unlawful simply because they have the effect of limiting the use of company e-mail systems for union-related communications.
Employers Would Welcome Relaxed Standard
The Board’s invitation for briefs—which must be submitted no later than September 5—isn’t necessarily a sign of a return to the Register Guard standard, but it signals at least a possible retreat from the Purple Communications standard, according to Jeff Slanker, an attorney with Sniffen & Spellman, P.A., in Tallahassee and a frequent contributor to Florida Employment Law Letter.
“Hard to tell, especially given that they are taking comments on whether the standard should be adhered to, but this certainly suggests the Board might relax the standard from Purple Communications,” Slanker says.
Employers would welcome a standard more in line with Register Guard even though Purple Communications did allow employers to make limited restrictions on the use of their e-mail systems.
Technically, under Purple Communications, employees were permitted to use the company systems for union-organizing purposes only during nonwork time, “but that line can be blurry, especially when technology is a finger-click away and easy to quickly use,” Slanker says.
The Purple Communications standard allows employers to prohibit the use of company e-mail for nonwork-related reasons if they can show special circumstances justifying the restrictions, such as the need “to maintain production or discipline.” But that limitation is narrow, and just what qualifies as special circumstances that would justify a restriction isn’t defined, Slanker says.
In addition to seeking comment on the standard that should be set for the use of company e-mail, the Board is asking for input on the standard that should be used in evaluating the use of company computer systems other than e-mail. Slanker says that part of the Board’s request anticipates other means of workplace communications that are becoming more common, such as text messages from company-provided cell phones and communications using an internal instant messaging system.
The case the Board is considering that may change the standard is Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino. Board Chairman John F. Ring was joined in the request for briefs by Board members Marvin E. Kaplan and William J. Emanuel, the Republicans on the five-member Board. Members Mark Gaston Pearce and Lauren McFerran, the Democrats on the Board, dissented.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.