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NLRB General Counsel Urges Reversal of Purple Communications Email Rule

The National Labor Relations Board’s office of the General Counsel is urging the Board to overrule its decision in Purple Communications, Inc., 361 NLRB 1050 (2014), which allowed employees to use employer email systems for NLRA Section 7 purposes (e.g., union organizing and protected concerted activity) during nonworking time.

On August 1, 2018, the Board invited briefs on whether the Board should adhere to, modify, or overrule Purple Communications, in connection with another case, Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, No. 28-CA-060841.

In its September 14, 2018, brief, the General Counsel’s office advised the Board to abandon Purple Communications and return to the Register Guard standard, which allowed employers to prohibit, in a nondiscriminatory manner, the use of their email systems. Register Guard, 351 NLRB 1110 (2007).

In support of its position, the General Counsel’s office relied on a “variety of legal and practical reasons.” First, it argued that Purple Communications contradicted decades of established precedent and “impermissibly created a right by employees to use employer-owned and -financed communication systems, even where employees possess a plethora of other means of communication.” The General Counsel’s office noted that the employees in Purple Communications had alternative methods of communication, including their personal cellphones.

Second, the General Counsel’s office raised First Amendment concerns, invoking the Supreme Court’s decision in Janus v. AFSCME Council 31, No. 16-1466 (June 27, 2018). According to the General Counsel’s brief, a presumptive right to use employer email systems for Section 7 purposes “raises First Amendment concerns because the Board, as a government entity, may not compel an employer to subsidize hostile speech by requiring the employer to pay for an email system to send, receive, and store speech with which it does not agree.”

Finally, the General Counsel’s office asserted the Purple Communications standard imposes significant burdens on employers, including lost productivity, threats to digital security, compromises to proprietary and confidential information, and increased costs of monitoring email systems. These burdens are unnecessary, because of other “easier and more efficient means for employees to communicate with one another,” such as smartphones, according to the brief.

In restoring the Register Guard standard, the General Counsel’s office recommended a limited exception in circumstances where an employer email system is the only means of communication. The General Counsel’s office noted such an exception could exist in “rare” workplaces with no access to face-to-face communication and no cellphone coverage. Personal email, text messaging, and social media, however, would constitute viable alternatives for employees to communicate for Section 7 purposes.

The Board’s invitation for briefs concerning Purple Communications remains open until October 5, 2018. The Board’s decision in Purple Communications also is on appeal before the Ninth Circuit.

Jackson Lewis P.C. © 2019

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Kevin M. Sibbernsen, Jackson Lewis, Employment lawyer
Principle

Kevin M. Sibbernsen is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Mr. Sibbernsen routinely advises clients regarding compliance with state and federal labor and employment laws, including those related to wage and hour issues, employee discipline and discharge, disability management and leave of absence issues, as well as reductions in force.

Mr. Sibbernsen also regularly advises clients regarding traditional labor law issues, including employer rights and obligations under collective bargaining agreements and the National Labor...

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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