Amicus Brief By Hirsch Influences NLRB to Reverse Decision on Email

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This article was originally published in the Spring-Summer 2015 issue of Carolina Law .

In many workplaces, employees use company email for personal communications: weekend plans, birthday greetings, even links to viral videos. Employers often allow these personal emails as long as they don’t interfere with company operations.

So what happens when employees use company email to communicate about working conditions, pay and benefits, unionization, and other topics protected under the National Labor Relations Act? That’s what the National Labor Relations Board (NLRB) decided in December, when it reversed a seven-year-old decision on corporate email in a case involving Purple Communications, Inc., a Rocklin, Calif., firm that provides virtual sign-language interpretation services for deaf and hard-of-hearing individuals and businesses.

UNC School of Law Professor Jeffrey M. Hirsch, a former NLRB lawyer who has long studied these issues, along with his research assistant Isaac Vargas 2L, weighed in with an amicus brief that appears to have shaped the board’s reasoning.

“This issue is sort of a technological twist on a very old labor law issue,” Hirsch, associate dean for academic affairs and Geneva Yeargan Rand Distinguished Professor of Law, says. It comes down to balancing two rights: employees have a right to collectively discuss workplace issues. Employers, though, have a right to control how their business property is used.

So when two or more employees use email to discuss a matter protected under federal labor law, can they use company email systems? Since 2007, the answer has been “No.”

That year, when the NLRB had a majority Republican membership, it ruled in the Register-Guard case that employers could prevent work email from being used for communications otherwise protected under labor laws. The board then ruled that companies’ property rights gave employers discretion to ban messages on corporate email systems, even if they addressed labor issues.

“This was viewed as a pretty big deal among unions,” Hirsch says. Unions are increasingly relying on electronic communications — email, websites, social media and more — to organize employees.

Hirsch has argued for several years that the Register-Guard decision ran counter to Supreme Court precedents. In a key 1945 case, Republic Aviation Corp. v. NLRB, the Supreme Court ruled that employees can discuss workplace issues on company property, with some limitations.

Over the years, that has meant that employees could do things like discuss their working conditions and advocate for a union during non-work time in non-work locations — cafeterias or break rooms, for example. Employers can’t prevent these protected conversations, assuming that didn’t create unusual problems for company operations.

Hirsch’s amicus brief in the Purple Communications case argued that the 2007 decision was wrong because it didn’t extend to corporate email systems the same privilege that prior rulings, and especially the Supreme Court’s Republic Aviation decision, had extended to discussions at work.

In the 2014 Purple Communications decision, the NLRB, now with a Democratic majority, reversed the 2007 decision on a 3-2 vote. The new rules essentially require companies to treat corporate email the same way they do conversation among employees in the break room.

Hirsch notes that employers could still ban emails that might disrupt company operations, such as sending a large video file. And employers will likely be able to prohibit emails to and from non-employees via company addresses in most circumstances, although the decision declined to address that issue.
The decision also leaves open questions involving other non-email, electronic communications. The rules for smart phones and text messaging, for example, are still unclear.

In time, though, Hirsch expects that the NLRB will fold these forms of electronic communications into the same set of rules it has now established for email.

-April 27, 2015

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