The General Counsel of the National Labor Relations Board (“NLRB”) in March of 2016 issued memorandum 16-01 requiring the Board’s Regional Offices, which investigate and prosecute unfair labor practices, to submit all cases or complaints related to employee e-mail and other electronic systems to the NLRB Division of Advice. The General Counsel explained in the memorandum that certain cases and issues are of particular interest to the Board and therefore require consideration by the head office in Washington, DC. This memorandum makes clear that the NLRB continues to take a keen interest in extending the reach of the National Labor Relations Act (“NLRA”) to new media.
The memorandum specifically requests submission of cases that involve the application of the case Purple Communications Inc., 361 NLRB 126 (2014). For those unfamiliar with Purple Communications, the case was a precedent-setting ruling from the NLRB in 2014 that requires employers to allow employees who have access to email at work to use the company’s email system for group discussions about the terms and conditions of their employment during non-work time. Specifically, the Board found that if employees are allowed to use the company’s email system to send and receive non-work emails during work hours, they must be permitted to use the system for concerted action during work hours.
The Board appears to be most interested in cases that involve “electronic systems other than email.” Therefore, companies that employ others types of corporate communication platforms, such as group text messaging, internal social media, and internal group chat systems, should use caution. Discouraging or disciplining employees who use these systems to discuss the terms and conditions of their employment could risk an unfair labor practice charge that is sent directly to the NLRB Division of Advice. Examples of discussions about terms and conditions of employment include discussions about wages, meal and rest breaks, hours of work, safety at the workplace, and job security.
Once again, this memorandum is a reminder that the NLRB is still on the lookout to extend the reach of the NLRB to social media and is keen to remind employers that employees are generally free to discuss working conditions on all forms of internal and external social media, even platforms owned and maintained by the company.
