NLRB headquarters in Washington. Credit: Diego M. Radzinschi/ALM

Business and management groups want federal regulators to prohibit employees from discussing workplace conditions and union activity on company-owned email, in case being weighed by President Donald Trump's National Labor Relations Board that confronts how technology clashes with labor law.

The advocates for business want the labor board to overturn Obama-era precedent that allows employees to use work email for communication about, among other things, workplace conditions and union-organizing activities. The business groups contend the use of email for those purposes is a “needless infringement on employers' rights.”

On the flip side, labor advocates, urging the NLRB to leave the precedent untouched, argue that electronic communication should be treated the same as chatter in the cafeteria and that restricting how email systems are used would be unwieldy and possibly discriminatory.

Both sides acknowledge the evolving modern workplace and that the labor board is being asked to reconcile the new ways employees communicate with decades-old labor law that protects speech and employers' property. The labor board indicated in its announcement soliciting briefs that it would consider all electronic communications in its decision, not just email.

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The Republican-led NLRB was divided over whether to begin taking a new look at these questions. The board, under the leadership of chairman John Ring, is revisiting the 2014 NLRB decision Purple Communications, which said employees can use company email for union-related communication.The NLRB is using the 2011 case Caesars Entertainment Corporation to consider these questions anew.

Major unions, business groups and others filed a host of amicus briefs in recent days, responding to the NLRB's call for views. Several of the groups, including the Center for Workplace Compliance, touched on whether the board's decision should extend beyond email communication and include other electronic forms of communication in the workplace.

A brief filed by the U.S. Chamber of Commerce and other big business groups, including the National Retail Federation, the American Hotel & Lodging Association and the International Foodservice Distributors Association, said prior to Purple Communications employees had no fundamental right to use employer equipment for protected union-related activity. Email should not be treated differently, McGuireWoods partner Seth Borden argued in the brief on behalf of the groups.

“To the contrary, the increasing pace of technological development and workplace innovation argues against the reactionary creation of new substantive rights, and in favor of continued application of a time-tested balancing test,” Borden wrote. “Yet against this backdrop, without any legitimate basis, Purple Communications upended well-established board precedent to create a new employee right to the employer's property.”

Borden said the NLRB's ruling in Purple Communications “has exposed employers to exponentially increasing, unnecessary risk.”

The AFL-CIO, meanwhile, told the NLRB that using company email for personal communications is “deeply-ingrained in the culture of virtually every workplace that has an email system and is often explicitly permitted by company rules.”

“Employers almost universally permit such use—whether by rule or de facto—because it allows employees to quickly and efficiently take care of personal business that might otherwise significantly disrupt the workday, because it fosters a sense of community in the workplace, and because the alternative of monitoring every employee email is simply too burdensome,” AFL-CIO associate general counsel Matthew Ginsburg wrote. “As a result, if the board were to hold that employers may bar company email use for Section 7 communications altogether, it would create a trap for the unwary while having little practical utility in terms of the day to-day management of the workplace.”

Ginsburg also argued that even with a blanket prohibition, employees would likely still use email for person use, and employers could face claims of discrimination if certain personal communication is allowed and union activity is not.

“Employers have little reason to strictly enforce a prohibition against employee emails seeking to sell cookies or raffle tickets for a scout troop or the local PTA or emails inviting employees to join a sports team or a local fraternal organization,” according to the AFL-CIO. “Again, if the employer were to seek to enforce such a rule against union-related communications, employees would have ample evidence of nonenforcement of the rule to support a claim of unlawful discrimination.”

U.S. Sen. Patty Murray, the ranking member of the Senate Committee on Health, Education, Labor and Pensions, also urged the board to uphold Purple Communications and allow workers to communicate with each other to discuss working conditions via email. “Workplace email is a 'natural gathering place' for the workers who use it, and employers may not silence their collective voices online,” according to Murray's brief.