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Brief to the National Labor Relations Board by Amicus Curiae Professor Jeffrey M. Hirsch

By Jeffrey M. Hirsch


In Purple Communications, Inc., 361 N.L.R.B. 1050 (2014), the NLRB set forth a new analysis covering employees’ use of employer-provided email. Under this analysis, which is based on the Supreme Court’s seminal decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the Board presumes that employees who have access to their employer’s email as part of their work duties can use that email for Section 7 purposes during nonwork time. Purple Communications, 361 N.L.R.B. at 1063. The employer can rebut this presumption by showing that special business circumstances justify additional restrictions on employees’ email use. Id. In contrast to the Board’s prior rule, the Purple Communications presumption is fully consistent with the NLRA and Supreme Court precedent. The Purple Communications analysis replaced the Board’s previous approach to email communications, as set forth in Guard Publishing Co. (Register Guard), 351 N.L.R.B. 1110 (2007), enforced in part, enforcement denied in part, 571 F.3d 53 (D.C. Cir. 2009). This reversal was appropriate and necessary because Register Guard was indefensible under current law. By providing employers almost unfettered authority to prohibits employees’ use of email for Section 7 purposes, Register Guard directly conflicted with Republic Aviation and the Court’s subsequent decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). In its attempt to avoid these holdings, the Register Guard majority attempted to differentiate real and personal property, but did so in a manner that defied well-established tenets of property law. No matter what various parties want the outcome in this case to be, the simple fact remains that the Purple Communications analysis is consistent with governing law, while the Register Guard is not

Topics: Labor and Employment Law, Law
Publisher: Carolina Law Scholarship Repository
Year: 2018
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