Wednesday, August 1, 2018
It's appearing that e-mail is becoming yet another issue on which the NLRB's views flip-flop depending on the party in charge of the White House. Today, the Board announced that it was seeking input on whether to reverse Purple Communications, itself a reversal of the earlier Register-Guard, decision. I've written about the issue of employees' use of employer e-mail quite a bit and won't rehash it all here. However, I will note that the Court's recent interest in the First Amendment (see: Janus among other cases) adds an additional spin. As I recently noted, Member Johnson's dissent in Purple Communications made a First Amendment claim; I thought it very weak, but I wouldn't be surprised to see it resurface in a new opinion by the Board. That, and the return of Register-Guard's "I slept through my 1L Property class in law school" treatment of personal property law. Apparently, it's time to update my amicus brief from the Purple Communications litigation.