Yesterday, the Ninth Circuit granted the National Labor Relations Board’s (“NLRB”) request to pause an appeal on the controversial Purple Communications, Inc. ruling. As we previously reported here, Purple Communications, Inc. (“Purple”), a video provider for deaf and hard-of-hearing individuals, appealed a 2014 NLRB ruling that allows employees to send union messages over work email to the U.S. Court of Appeals for the Ninth Circuit. The NLRB’s 2014 ruling held that employees who already have access to their employer’s email system are permitted to use the email system for protected union-related activities because email is the premier platform for “worker speech” in the modern workplace.
The Ninth Circuit granted the stay of the appeal that was set for oral argument on October 9, 2018 until the NLRB decides whether to keep or revoke the 2014 Purple ruling. The NLRB is currently seeking public input on whether to keep, modify or rescind the decision via briefs with a deadline of October 5, 2018 (extended from September 5, 2018) based on a similar, pending case involving Caesars Entertainment Corp. Earlier this month, NLRB general counsel Peter Robb filed a brief arguing that the Purple standard should be thrown out for multiple reasons, including that it purportedly cuts against decades of board precedent, forces businesses to pay for employee communications in a manner that is unconstitutional, and causes a host of practical problems for businesses.
In addition, there are fresh calls for recusal of NLRB member Bill Emmanuel in the pending Caesars matter as his former firm, Litter Mendelson, is one of the firm’s that represents Purple Communications in the Ninth Circuit. As you may recall, Emanuel was previously the focus of a recusal controversy in the Hy-Brand matter, which initially overturned the Browning-Ferris joint employer standard.
COUNSEL TO MANAGEMENT:
As we stated earlier, the NLRB’s 2014 ruling flies in the face of conventional thought that employers’ work email is to be used for precisely that – work. The NLRB, under the current administration, is attempting to roll back the Purple decision to match that conventional wisdom. We will update you as the case progresses. In the meantime, contact The Saqui Law Group with any questions or concerns you may have with your Company’s policies.