Hunton Employment & Labor Perspectives

In Purple Communications, Inc., a divided National Labor Relations Board held that employees have the right to use their employers’ email systems for statutorily protected communications, including self-organization and other terms and conditions of employment, during non-working time.  In making this determination, the Board reversed its divided 2007 decision in Register Guard, which held that employees have no statutory right to use their employer’s email systems for Section 7 purposes.

President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats.  Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers.  The Board already has such an opportunity in Register Guard.  The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.