Ms. Wilma Liebman is a Democrat that was recently nominated by President Obama to serve as NLRB chair. The other two recent NLRB appointees, Craig Becker and Mark Pierce, are also Democrats. Many, including myself, are looking into our crystal balls and finding few bright spots for employers under the current administration. I anticipate the now Democratic NLRB will revisit and potentially reverse several key NLRB decisions — including Register Guard.
In December 2007, the NLRB issued a very significant decision, Register Guard, on an important issue — whether an employer may set up a policy that prohibits employees from using the employer’s e-mail system for any “non-job-related solicitations.” In Register Guard, the Republican majority of the NLRB held that an employer has a property right in its email system, and thus may develop rules which allow emails related only to the employer’s business. The strong dissent by then-minority Ms. Liebman argued that email was different than other types of communication equipment and should be treated as such. As the new NLRB Chair, surrounded by two new like-minded colleagues, my crystal ball is telling me that the Register Guard case will likely be reversed.
The legal implications of technology in the workplace continues to be an area of discontent for many employers. Many employers are struggling to develop policies to address the proliferation of not just email, but Web 2.0 technologies among employees and increasing abilities to disseminate large amounts of data into cyberspace. Moreover, if decisions such as Register Guard are overturned, the technologies used by employers for business purposes may perhaps soon be used for purposes adverse to the business’ interests, such as union organizing.