New Rules for Employee E-Mail Use? Labor Board Wants Input (2)

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By Hassan A. Kanu and Chris Opfer

Workers may soon no longer have the right to use company email systems to discuss unionization.

The National Labor Relations Board today called for public input on whether to overturn a 2014 decision forcing businesses to allow workers to use company email for organizing purposes. Advocates for unions and businesses tell Bloomberg Law they expect the Republican-majority board to revert to an earlier policy generally allowing employers to ban workers from using company email for communications not directly related to their job duties.

“This is not a surprise,” Steven Swirsky, an Epstein Becker Green attorney who represents businesses in labor-management disputes, told Bloomberg Law. “What we’re talking about is property rights. An employer has multiple interests in making sure that employees are not misusing email and other communications systems.”

If the board scraps its 2014 decision in a case called Purple Communications, it would be the latest in a flurry of moves to undo Obama-era rulings since Republicans took control of the NLRB last year. Business groups and lawmakers say the majority is simply restoring balance to the board, but worker advocates say the moves are designed to make it tougher for employees to unionize.

“A lot of the organizing we’ve seen in recent years has been in white-collar settings,” AFL-CIO lawyer Matthew Ginsburg told Bloomberg Law. “Those are the sorts of occupations where common sense tells you a lot of workers’ communication is happening online and through email.”

The move comes as a federal appeals court is reviewing a challenge to the Purple Communications decision.

The board is considering revising its approach to the issue in a separate case involving workplace rules at a Caesars Resorts casino in Las Vegas. Briefs are due to the board by Sept. 5.

Public Notice

The board’s decision to allow the public to weigh in on the email question is likely meant to avoid some of the criticism that came when the NLRB overturned other Obama-era rulings last year.

The board in December in a pair of 3-2 decisions temporarily scrapped an expanded approach to joint employer liability for affiliated businesses—the decision was later dropped—and loosened restrictions on workplace rules.

The NLRB’s two Democrats—Mark Gaston Pearce and Lauren McFerran—chided Republican members for what they called “a significant departure from board norms” in issuing those decisions. Pearce and McFerran said the board didn’t seek public input and used the cases as vehicles to overturn prior decisions, even though none of the parties in the cases asked them to do so.

Swirsky said the public notice also gives the board a chance to address the issue in a more comprehensive way.

“It’s probably a good thing to invite input because there are a lot of nuances in this issue,” he said. “If it works out, maybe we get a ruling that gives clearer guidance than you would get if it was just on the facts of this particular case.”

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