Audit, Compliance and Risk Blog

NLRB Sends Mixed Signals for Future of Employee Electronic Communications

Posted by Linda Riedemann Norbut on Tue, Mar 20, 2018

On December 19, 2017, the National Labor Relations Board (NLRB) asked the U.S. court of Appeals for the Ninth Circuit to affirm the NLRB’s ruling in Purple Communications, Inc., a 2014 NLRB decision which ruled that employers must presumptively permit “employee use of email for statutorily protected communications on nonworking time.” The ruling applies to those employers who have chosen to give employees access to their email systems, and the presumption of employee rights can be overcome in only very limited circumstances.

Curiously, the appeal to the Ninth Circuit followed on the heels of a Mandatory Submissions to Advice Memorandum issued on December 1 by the newly sworn-in NLRB General Counsel, Peter Robb. The memo offers insight as to how the NLRB is likely to proceed in setting its agenda and calls for NLRB regional offices to submit pending cases involving “significant legal issues,” including cases involving claims based on the Purple Communications ruling, to his office.

The memo explains that it is withdrawing, and effectively overruling, prior memos in which Robb’s predecessor noted his initiative “to extend Purple Communications to other electronic systems” in the workplaces, such as the Internet, phones, and instant messaging systems that employees regularly use in the course of their work. Additionally, the new memo suggests that the Purple Communications decision itself is subject to an “alternative analysis” that may be more favorable to employers.

Nonetheless, the NLRB asked the Ninth Circuit to affirm Purple Communications only 18 days after the new memo was issued. In its brief, the NLRB argued that the Purple Communications decision is in line with U.S. Supreme Court precedent allowing workers to use nonworking time as they see fit.

“The board recognized that in the modern workplace employees regularly communicate with each other via email, whether they are in the office or teleworking,” the NLRB explained in its Ninth Circuit brief. “[W]here employers have made email a normal method for employees to communicate in the virtual workplace, a rule flatly barring employees from using the employer’s email system to communicate with their fellow employees on their nonwork time is presumptively an unreasonable impediment to self-organization.”

The NLRB’s seemingly conflicting public positons send mixed signals on what the future may hold for the Purple Communications decision and its application to employee use of email and other electronic communications. The new memo casts doubt on the case’s authority, while the petition to the Ninth Circuit seeks to cement it in the jurisprudence governing private employer-employee relations.

The Purple Communications decision has already had a long journey through the NLRB and the courts, and it is now clear that it has not yet met the end of its road.

This column is for educational purposes only; it does not constitute legal advice.

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About the Author

Linda Riedemann Norbut is a Legal Fellow at the Brechner Center for Freedom of Information, University of Florida, and the former editor of the Brechner Report, a monthly publication that focused on Florida’s Government-in-the-Sunshine laws. She has won multiple awards for her writing on issues related to the First Amendment.

 
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Tags: Internet, NLRB, Employee Rights, Employer Best Practices