John Ring testifies before the U.S. Senate Health, Education, Labor and Pensions Committee during his confirmation hearing to be a member of the National Labor Relations Board, on March 1.

In many workplaces, the “water cooler” long ago moved online, where workers exchange news, collaborate and perhaps complain about the boss via email, social media and increasingly popular internal messaging systems.

The National Labor Relations Board now faces a fresh legal battle over such realities of the modern workplace, as companies and regulators seek to reconcile new forms of communication with decades-old labor law that protects speech and employers' property.

The board's Republican majority has asked for briefs in a case that revives a debate over employee use of corporate email to discuss union-related activity. Management-side lawyers contend employers should not be forced to support electronic forums that permit messages they don't agree with.

The board, against the votes of its two Democratic members, is revisiting the 2014 decision Purple Communications, in which the Obama-era panel said employees can use company email for union-related communication.

It's not clear how far the Trump board will go in overturning or adjusting the current standard but there are hints a new decision could extend beyond email. In a notice requesting input, the board said it was “inviting comments on the standard it should apply to evaluate policies governing the use of employer-owned computer resources other than email.”

The NLRB routinely shifts in political winds, depending on who's in power. Trump-appointed NLRB general counsel Peter Robb telegraphed early on that he wanted the board to revisit the scope of the Purple Communications decision. His predecessor, Richard Griffin, had sought to expand the scope of the ruling through dozens of cases that would test the bounds of electronic communication, hardware such as computers and cellphones and instant messaging systems. Robb rescinded that effort.

Communication in the modern workplace continues to evolve. Internal messaging systems such as Slack are more popular than ever, letting workers chat in real time. Message boards are offering employees new digital forums to share ideas—and presenting novel legal risks for companies.

Google last year fired an employee, James Damore, who circulated a memo decrying the tech company's push for diversity at the company. The NLRB upheld the termination as lawful, saying Damore's memo fostered a hostile work environment.

AFL-CIO associate general counsel Matthew Ginsburg said that email communication on company systems should be protected under Section 7 of the National Labor Relations Act.

“I think the question is how these black letter labor law rules apply to the modern workplace where so much employee communication takes place electronically,” Ginsburg said. “Whatever rule the board sets should apply to any employer-provided communication forum employees use to communicate about nonwork topics.”

Ginsburg said any move by the NLRB to shut down union discussions on work email platforms “will invite a slew of discrimination cases. Having to litigate in every case whether the employer permits email discussion of nonwork topics other than unions isn't good for anyone. That's why the current bright-line rule with its exception allowing an employer to show that the rule shouldn't apply to it makes such good sense.”

The union has argued any rule that restricts the substance of email activity will open a door to discrimination charges and complicated questions about blurred lines between work and personal time.

The NLRB is using the 2011 case Caesars Entertainment Corporation to consider anew questions about electronic communication. Chairman John Ring and fellow Republican members Marvin Kaplan and William Emanuel voted to solicit amicus briefs. Members Mark Gaston Pearce and Lauren McFerran dissented. The board set a Sept. 5 deadline to file briefs.

Management-side lawyers contend the NLRB's Purple Communications decision compels employer speech, a violation of the First Amendment.

“The challenged board decision requires employers to give employees free access to corporate email systems for the purpose of communicating pro-union messages with which employers may disagree,” lawyers for Purple Communications wrote in July in a letter to the NLRB. The company is represented by the firms Littler Mendelson and Akin Gump Strauss Hauer & Feld.

Former NLRB member Harry Johnson wrote a sweeping dissent in the Purple Communications case that raised First Amendment concerns. He also rejected any comparison to a traditional water cooler, arguing that email is “by no means a gathering place.”

“This case has wide potential application related to electronic communications in general,” Johnson, now a Morgan, Lewis & Bockius partner, said in an interview. An employer, he said, has no interest in “dozens or hundreds of conversations spawned on its own system at the expense of performing productive work.”

A new test concerning electronic communication, Johnson said, would help employers. “You don't want employers to have to subsidize a message that they don't agree with,” he said. “I think that will be argued in the briefing.”

 

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