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Law Alert: NLRB Invites Comments On Employee Access to Employer Email for Union Organizing Purposes

by A. Jack Finklea, James H. Hanson, Donald J. Vogel

August 1, 2018


NLRB Invites Comments On Employee Access to Employer Email for Union Organizing Purposes

This afternoon, the National Labor Relations Board invited the filing of briefs to assist in determining whether and to what extent an employer’s policy prohibiting the use of its computer systems to send non-business information to other employees violates the National Labor Relations Act.  In a 2014 decision known as Purple Communications, the Board held that such a policy violated the Act because it effectively prohibited employees from using their employer’s email system to engage in union organizing efforts.  That decision overturned a 2007 decision, Register Guard, which found the opposite – that such a facially neutral policy was not unlawful merely because it also had the effect of limiting an employee’s ability to use the email system for union organizing purposes.  The Board now seeks input from the public on whether to adhere to the standard set in Purple Communications, return to the Register Guard standard, or to adopt an altogether new standard.

Importantly, the Board seeks input not only with respect to the use of an employer’s email systems, but with all employer computer resources.  This expressly includes instant messaging, text messaging, and social media postings using company equipment, and it also could encompasses various transportation industry communication equipment and processes.  Equally important, as it stands to affect the transportation industry, the Board seeks comment on whether any prohibitions on the use of email systems and other computer equipment should contain a carve-out for a “scattered workforce.” 

Briefs must be filed by September 5, 2018.  Click here to access the Board’s invitation, including the dissents lodged by Members Pearce and McFerran.  For more information on the release, the current state of the law, or the process of completing and filing briefs, please contact Scopelitis Partners Jim Hanson, Jack Finklea or Don Vogel.




Scopelitis Transportation Law Alerts are intended as a report to our clients and friends on legal developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

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