NLRB Considers Revisiting 2014 Ruling Regarding Employer Restrictions on Use of Company Email by Employees in New Jersey and Nationwide

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to labor organizing. The statute established the National Labor Relations Board (NLRB) to investigate and adjudicate alleged violations. Union organizing can now take place both online and in real life, and the NLRB regularly considers questions involving communications technologies like email. Its rulings can affect not just New Jersey employment law but workers in New Jersey and all over the country. In 2007, the NLRB ruled that employers can place restrictions on employees’ use of company email for non-work purposes, even if it might restrict employees’ ability to engage in NLRA-protected activities. It overturned that decision in 2014, but now the NLRB is asking the public to file briefs addressing whether it should return to the standard it established in 2007.

Section 7 identifies workers’ “right to self-organization,” and to engage in activities related to “bargain[ing] collectively through representatives of their own choosing.” 29 U.S.C. § 157. An employer commits an “unfair labor practice” under § 8 of the NLRA if it “interfere[s] with, restrain[s], or coerce[s]” an employee attempting to exercise a protected right. Id. at § 158(a)(1). Congress enacted the NLRA in 1935, and it last amended § 7 in 1947. The nature of union organizing has changed in many ways since that time, and the job of interpreting § 7 in light of new technologies has largely fallen on the NLRB.

In 2007, the NLRB ruled that “employees have no statutory right to use the [employer’s] e-mail system for Section 7 purposes.” The Guard Publishing Co. d/b/a The Register-Guard, et al, 351 NLRB 1110 (2007). The employer in that case, a newspaper, installed a computer system in 1996 that provided email accounts for many of the employees. It maintained a policy prohibiting employees from using their email accounts for “non-job-related solicitations.” Id. at 1111. An employee alleged violations of § 7 after the employer issued several written warnings to her about using her company email account to send notices about union activities. The NLRB affirmed an administrative law judge’s (ALJ’s) 2002 ruling that the employer’s policy did not violate § 8, but that the employer violated § 8 by enforcing the policy in a discriminatory manner.

The incidents that led to the Register-Guard decision occurred in the 1990’s, when email was still a new mode of communication in many workplaces. The NLRB overruled Register-Guard in Purple Communications, Inc., 361 NLRB 1050 (2014). It held that the ruling “that employees can have no statutory right to use their employer’s email systems for Section 7 purposes…was clearly incorrect,” in part because it “focus[ed] too much on employers’ property rights and too little on the importance of email as a means of workplace communication.” Id.

An ALJ cited Purple Communications in a 2016 ruling in Caesars Ent. Corp., et al, No. 28-CA-060841, holding that an employer violated § 8 by prohibiting the use of company email for non-work purposes. In August 2018, the NLRB requested briefs from the public on whether Purple Communications should be overturned, or whether it should be expanded to include “the use of computer resources other than email.” The deadline for submissions was September 5.

The Resnick Law Group’s team of knowledgeable and experienced employment attorneys advocate for the rights of workers in New Jersey and New York, representing them in claims for a wide range of unlawful employment practices. To schedule a confidential consultation to see how we can help you, please contact us today at 973-781-1204, at 646-867-7997, or through our website.

More Blog Posts:

NLRB Rules Against Employer’s Ban on Solicitation, The New Jersey Employment Attorney Blog, September 14, 2018

Supreme Court Ruling Affects Collective and Class Employment Actions in New Jersey, The New Jersey Employment Attorney Blog, July 10, 2018

NLRB Vacates 2017 Ruling on “Joint Employment” that Favored Employers, The New Jersey Employment Attorney Blog, April 25, 2018


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