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The NLRB is Looking to Overturn Email Solicitation Rules

While a revised ruling would be consistent with the NLRB’s recent position on workplace communication, it is concerning for employers and bears monitoring.

May 5, 2014

In Register Guard, the National Labor Relations Board held that an employer’s solicitation or other communication policy can lawfully bar employees’ non-work related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the NLRA, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era Board. Now, it’s 2014, and the current Obama-era Board is taking a look at Register Guard. 

The Board has posted a notice [pdf] asking advocates to submit position briefs covering each of the following five issues:

  1. 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 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to the 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. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s 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’ rights 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 communications systems that the Board 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 Board’s decision?

The notice is in response to an Administravie Law Judge’s decision in Purple Communications, Inc., holding that an employer did not violate the Act by prohibiting use of its electronic equipment and email systems for activity unrelated to its business purposes. 

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard, and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it to restrict employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers and bears monitoring as this important issue weaves its way through the NLRB.