As some readers may be aware, last year, the National Labor Relations Board (the Board) reversed several Obama-era precedent setting cases bearing standards generally considered favorable to employees. This included The Boeing Company, 365 NLRB No. 154 (2017) (overruling the Lutheran Heritage standard); PCC Structurals, Inc., 365 NLRB No. 160 (2017) (overruling the Specialty Healthcare standard); and Hy-Brand, 365 NLRB No. 156 (2017) (overruling the Browning-Ferris standard). The Board also announced in December that it was making efforts to target additional cases for reconsideration moving forward.
Currently, the Board is continuing down this path by poising itself to reconsider and perhaps overturn Purple Communications, Inc., 361 NLRB 1050 (2014). Purple Communications overruled Register Guard, 351 NLRB No. 1110 (2007), which generally permitted employers to restrict employees from using work email systems for Section 7 activity. By contrast, the Purple Communications Board held that employees granted use of work email systems have a presumptive statutory right to use those email systems for Section 7-protected activity. (Some restrictions on this right may be justifiable if the employer demonstrates that they are due to “special circumstances necessary to maintain production or discipline.”) Indeed, the Board included Purple Communications among the cases it showed interest in revisiting this past December.
On August 1, the Board issued a Notice of Invitation to File Briefs in Caesars Entertainment Corporation, Case No. 28-CA-060841, concerning whether it should overturn Purple Communications and return to the holding in Register Guard. The announcement also asks several questions to which the Board seeks input, including:
- Whether the Board should adhere to, modify, or overrule Purple Communications;
- If the Board overrules Purple Communications, what standard governing employee use of work email should it adopt;
- If the Board returns to Register Guard, should it carve out exceptions for situations in which employees’ ability to communicate apart from an employer’s email system is limited; and
- Whether the Board should consider and apply different standards to an employee’s use of an employer’s “computer resources” apart from email systems, and what any such standards should be.
Briefs in response to the Board’s announcement must be filed by September 5, 2018.