On April 30, 2014, the NLRB invited parties to file briefs addressing whether it should overturn the current Register Guard standard governing employees’ use of employer-provided email accounts and other electronic communication systems. The NLRB will consider the briefs in reviewing an Administrative Law Judge’s recent decision in Purple Communications, Inc., in which the ALJ relied on Register Guard in dismissing a union’s claim that the employer violated the National Labor Relations Act by prohibiting use of its electronic equipment and email systems for activity unrelated to the employer’s business.

Under Register Guard, employees generally do not have a right to use their employer’s computers to engage in protected activity, and employers may lawfully discipline employees for doing so. However, an employer is prohibited from allowing use of its computers and email for non-work purposes while discriminating against such use for similar protected activities.

The General Counsel has asked the NLRB to overrule Register Guard and adopt an employee-friendly rule that employees who are permitted to use their employer’s email account for work purposes also have the right to use it for Section 7 activity (i.e., discussing the terms and conditions of their employment with co-workers), subject only to the employer’s need to maintain production and discipline.

This news should not come as a surprise to employers who follow our alerts. The decision has been a prime target since the early days of the Obama administration. As we previously reported, the new General Counsel has made quite clear his desire to have the current NLRB overturn the Bush-era NLRB’s decision in Register Guard. Given the NLRB’s current employee-friendly composition, Register Guard’s days as the governing standard may be numbered. We will continue to monitor this situation and provide updates.