Third Time’s a Charm? The Republican Majority NLRB Is Re-Examining Section 7 and Company Email

With a new Republican majority in the NLRB, the rules may be changing (again) when it comes to company emails. The NLRB is in the process of re-analyzing when and how employers can restrict employees’ company email use without running afoul of NLRA Section 7, and may begin upholding employer policies with facially neutral restrictions on company email and computer usage again in the near future.

A bit of background: Section 7 of the NLRA protects an employee’s right to engage in “concerted activities,” which occurs “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” The NLRA’s protection of “concerted activities” is a broader concept than “union activities” and covers many different activities, including employee discussions about pay, work conditions, and safety concerns. The NLRB has construed the terms “concerted” and “protected” very broadly and vaguely, to include any activity aimed at affecting employee interests.

There were limits, however, on how employees engage in such concerted activities. In 2007, the Board in Register Guard held that an employer may completely prohibit employees from using the employer’s email system for Section 7 purposes without demonstrating any business justification, so long as the employer’s ban is not applied discriminatorily. 351 NLRB 1110. Under the Register Guard standard any restrictions placed on employees’ email use must be neutral and not targeted at dissuading Section 7 activity.

But then, in the 2014 decision, Purple Communications, Inc., 361 NLRB 1050, the NLRB reversed itself and held that Section 7 requires employers, except in very limited circumstances, to open their corporate e-mail systems to employee union organizing and group discussions about the terms and conditions of employment during non-work time. Therefore, under the current Purple Communications standard, an employer that grants an employee access to its email system, but restricts that access in any way that prohibits Section 7 activity, or that could be reasonably interpreted as prohibiting Section 7 activity, may have committed an “unfair labor practice” under the NLRA. An employer can rebut that presumption by showing the restrictions are justified by “special circumstances.” We have previously blogged how this has been applied in the email context here and here.

Now, with the recent appointment of Trump nominee John F. Ring to the Board, and the consequent shift to a Republican majority, the Board is revisiting its Purple Communications holding and has invited public comment on what the applicable standard should be today. The Board is examining whether the Register Guard or Purple Communications standard is appropriate, or whether an entirely separate standard should be enforced. Interestingly, the Board also seeks comment on whether any standard should remain limited to email communications, or should be broadened to include the employer’s broader communication network.

The Board requires briefs to be submitted by September 5, 2018, and responsive briefs to be submitted by September 20, 2018 via the NLRB’s website.  It is not clear from the Board’s call for comment when it expects to render a decision, but employers should keep an ear to the ground (and an eye on this blog) over the next several months for updates.