Thursday, May 1, 2014

The End of Register-Guard?

NLRBThe NLRB just announced that it is inviting briefing from the parties and amici on whether to overturn Register-Guard, in a case called Purple Communications.  Among the list of questions the Board raised are: 

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7?

It is no secret that I'm not a fan of Register-Guard (in addition to the link above, see here and here).  So, I'll be watching this case very closely.  One disappointing aspect of the announcement is that the Board did not raise the possibility of reversing Register-Guard's restrictive definition of "discrimination."  Perhaps that's a topic for another day.


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Presumably, the restrictive definition of "discrimination" is being considered in connection with Roundy's, Inc:

Roundy's Inc.
Click here to view briefs filed in this case:
In cases alleging unlawful employer discrimination in nonemployee access, should the Board continue to apply the standard articulated in Sandusky Mall Co. (329 NLRB 618, 623), and if not, what standard should the Board adopt to define discrimination in this context? Also, what bearing, if any, does Register Guard (351 NLRB 1110) have on the Board's standard for finding unlawful discrimination in nonemployee access cases? An extension of time to file briefs was granted, and the deadline to file was January 7, 2011. The deadline to file briefs has passed.

Posted by: Michael Murphy | May 12, 2014 10:13:42 AM

Thanks. Although given how old that call is, one wonders if the Board is going to do anything with it.

Posted by: Jeff Hirsch | May 15, 2014 9:10:44 AM

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