In May, this blog discussed the National Labor Relations Board (the Board or NLRB)’s potential targeting of policies regulating employee use of company email for non-business purposes. In inviting the filing of amicus briefs on the issue, (Purple Commc’ns, Inc., NLRB, No. 21-CA-95151, invitation to file briefs 5/1/14), the Board signaled that it may overturn the Bush-era Register Guard decision, 351 NLRB 1110 (2007), which held that employees do not have a Section 7 right to use their employer-provided email for union organizing.

As expected, in his Monday, June 16, 2014 brief, the NLRB’s General Counsel criticized the Register Guard decision, stating “the Board should hold that employees who use their employer’s electronic communications systems to perform their work have a statutory right to use those systems for Section 7 purposes during nonwork time, absent a showing of special circumstances relating to the employer’s need to maintain production and discipline.” 

In amicus briefs, such organizations as the National Association of Manufacturers, the Retail Litigation Center, the Society for Human Resource Management, and the Chamber of Commerce, argued that the NLRB should not overturn Register Guard.

The business groups argued that employers have a basic property right to regulate and restrict employee use of employer-owned property, and that “[t]here is no justifiable basis for creating a new ‘right’ of employees to compel their employers to allow use of company email systems for Section 7 purposes.”

The Chamber of Commerce and other business groups emphasized that companies have relied on a clear rule over the past six years, and that a more lenient rule would require companies to change their policies to comply with a new approach requiring substantial legal compliance and other expenditures. “At the most basic level, the greater the traffic and use of those systems, the higher the potential costs.” The Chamber also pointed out that “[w]ith the rise of electronic discovery in federal and state courts, more emails on an employer’s system means more emails the employer must potentially retain and sort through during the discovery process.”

Notably, both sides attempt to claim that technological advancements since Register Guard bolster their argument. In arguing that the Board should overrule Register Guard, The Service Employees International Union argued that technological updates since 2007 such as “bring your own device” policies have “blurred the line between personal time and work time.” Similarly, in stressing that employees have a right to communicate with one another at the job site, the General Counsel argued that “email has become the ‘natural gathering area’ for employee discourse.”

On the other hand, the parties seeking to keep Register Guard in place argued that because it is even easier today than it was seven years ago for employees to contact each other due to the proliferation of social media, smartphones, and free and accessible personal e-mail, that employees “cannot credibly claim that they lack the ability to communicate with each other unless Section 7 is read to require employers to allow them to use employer systems to do so.”

We will continue to monitor this case and report on developments as they occur.