Employment Advisory  

Published by Howard & Howard Attorneys PLLC

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June 26, 2014
Thank you for taking the time to read this Howard & Howard Employment Advisory.  We are pleased to provide our clients and friends with periodic updates on issues, industry developments, and regulatory changes to help you address the changing challenges facing employers.  As always, if you have any questions, please feel free to contact any of the Howard & Howard Labor, Employment and Immigration Group attorneys.


NLRB General Counsel Attacks

Employer E-mail Policies


Following our recent articles regarding the NLRB's assault on employers, regardless of whether the workplace is union organized, employers should be aware of efforts to change existing law that recognizes their right to control their e-mail system. If this action is successful, employers may have to open their e-mail and electronic communication systems to employees for union organizing activities.


The NLRB's 2007 Register Guard decision, affirmed by the Court of Appeals, upheld an employer's right to regulate use of its e-mail system, and stated that "employees have no statutory right to use the Employer's email system for Section 7 purposes." Following that precedent, an Administrative Law Judge ("ALJ") in the recent Purple Communications case refused to find a violation in an e-mail policy which limited use to business purposes. Citing the Register Guard case, the ALJ said "an employer does not violate Section 8(a)(1) by maintaining a prohibition on employee use of its email system for "non-job-related solicitations."


The Purple Communications case is now on review at the Board, and the effort to erase Register Guard continues. On April 30, 2014, the Board invited General Counsel and "interested" third parties to file briefs on whether it should modify or overturn Register Guard.  In addition to whether the Register Guard rule should be retained, the Board solicited input on what standards of employee access should be established. The Board also invited comment on whether and how the potential impact on the employer of a change in the law, and availability of employee access to personal electronic devices and e-mail, should affect the decision. As of June 16, 2014, fifteen "interested" party briefs, as well as briefs by the parties and General Counsel, have been filed, with the greater number favoring retaining the Register Guard rule. However, numbers are not controlling and some modification, if not outright reversal, of Register Guard can be expected. Whether the Board's modification or reversal of Register Guard will survive judicial review cannot be predicted.


Employers who have not recently reviewed their e-mail policies should do so now. Beyond reviewing the policy, employers must review and clarify enforcement of their policy. As in many other areas involving e-mail, courts are often more concerned with the application and enforcement of a policy than formal policy language.


For more information, contact Mike GiffordTracy Litzinger or Brian Kreucher.

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In This Issue
NLRB General Counsel Attacks Employer E-mail Policies
About Howard & Howard
Attorney Spotlight
Michael Gifford   
Michael D. Gifford
is a Member of Howard & Howard Attorneys PLLC's Labor, Employment and Immigration Practice Group, and represents employers throughout the Midwest.
Attorney Spotlight
Tracy Litzinger      
is a Member of Howard & Howard Attorneys PLLC's Labor, Employment and Immigration Practice Group and represents employers nationwide.
Attorney Spotlight
is a Member of Howard & Howard Attorneys PLLC's Labor, Employment and Immigration Practice Group and represents employers throughout the Midwest. 
This Advisory is intended for informational purposes only, and is not offered as legal advice.  Please call a qualified attorney for counsel related to your particular situation.