Last Wednesday, the NLRB issued a notice and invitation for parties to file briefs to address how the board should treat its previous decision Purple Communications, Inc., 361 N.L.R.B. 1050 (2014). As we explained when Purple Communications was decided, the NLRB held that employees who were given access to their employer’s e-mail system for work-related purposes have a right to use that system for statutorily protected communications during non-working time. A similar case has now come before the board, Caesars Entertainment Corporation, and the NLRB has invited interested parties to file briefs as to whether it should adhere to, modify, or overrule Purple Communications.
The governing rule from Purple Communications replaced the one from Register Guard, 351 N.L.R.B. 1110 (2007). Under Register Guard, employers could lawfully limit employees’ use of their email system for certain non-business-related activities, including statutorily protected communications, assuming that it did so in a non-discriminatory fashion.
Purple Communications, Inc. held that the Register Guard rule was “clearly incorrect,” and overruled it. The NLRB reasoned that the old rule gave too much consideration to employers’ property rights and not enough to employees’ rights to communicate about their employment. The NLRB added that the old rule did not properly take into account the importance of e-mail as a vital means of communication. It also drew a distinction between bulletin boards and copiers, on the one hand, and e-mail systems on the other hand, given long-established NLRB precedent permitting employers to prohibit non-business uses of the former. Continue Reading