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Businesses Advance Free Speech Rights After Janus Ruling

July 6, 2018, 8:04 PM

Employer groups and attorneys representing a sign language interpretation business are asking a federal appeals court to reconsider corporations’ free speech rights in light of a recent U.S. Supreme Court decision.

The high court ruled last month that public workers who don’t join the union representing their workplace can’t be compelled to contribute “fair share” fees to cover the union’s costs in bargaining for a collective contract. The justices in a 5-4 decision said the fees violate those workers’ free speech rights because unions advocate for political positions or candidates they may not support.

The court’s reasoning in the Janus case should also mean that private employers can’t be compelled to allow workers to use their corporate email systems to distribute pro-union messages the company may not agree with, attorneys for Purple Communications Inc., the National Association of Manufacturers, and three other trade groups said July 6. They want the U.S. Court of Appeals for the Ninth Circuit to overturn a National Labor Relations Board decision requiring businesses to allow workers to use company email systems for union purposes.

“Such access in effect forces employers to subsidize employee communication of union messages which the employers do not endorse, infringing the employers’ First Amendment rights in a manner that has now been found to violate the Constitution under the Supreme Court’s holdings in Janus,” the Littler Mendelson and Akin Gump attorneys representing Purple Communications wrote.

The appeals court hasn’t yet weighed in, but the move by the business groups and management attorneys indicates how the Supreme Court’s Janus ruling may further bolster the free speech rights of corporations and employers.

Purple Communications’ case challenges a 2014 decision by the National Labor Relations Board that employees have the right to use an employer’s email system for union organizing and other federally protected activity. Republican board members dissented strongly at the time, and the board’s new general counsel, Peter Robb (R), has said he would like to change the 2014 ruling.

The board has at least one, separate pending case that could be a vehicle to change the current Obama-era rule. The Ninth Circuit’s decision in Purple Communications’ case could affect when and how the board would do so.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com