The new age of the smartphone has resurrected the Pokémon craze from the 1990s in a completely new version of the once popular handheld Gameboy Nintendo game. With the help of the smartphone’s GPS, Pokémon Go requires individuals to physically enter the real world to chase Pokémon located on the phone’s map. The game randomly places the miniature monsters around the world, and the user must physically track them down.

Positives: This new interactive platform encourages kids to move around in an effort to find the little alien monsters. People are walking miles to track them down. Since its release on July 6, Pokémon Go has quickly grown to become the biggest mobile game in U.S. history, according to SurveyMonkey. Nintendo added over $7 billion to its market value in a single week.

The Not So Good: The Pokémon are everywhere. As a result, individuals are traveling everywhere to catch them, including on to private property, into hospitals, and even in Simba’s den. We used to think texting and driving was dangerous; now you should be aware of individuals hunting and driving. Additionally, please refrain from the hunt while you are on the clock. Employers may now be less concerned about Candy Crush distractions, and more concerned about team hunts in the office.

Employers have to be concerned about the safety of potential hunting visitors and trespassers. For example, individuals have been known to catch critters in electrical substations. Hopefully Pikachu and Electrike (two electric harnessing Pokémon) can be found elsewhere.

In an effort to catch ‘em all, employees on the hunt lose attentiveness to their surroundings, which can lead to injuries. An obvious employer concern is lost productivity. One other issue is that Pokémon Go has access to the phone’s GPS and camera, creating a more than theoretical risk of security breaches.

Does your company provide email access to its employees? Are there restrictions on how and when email may be used? These issues are addressed in the National Labor Relations Board’s (NLRB) December 11, 2014 decision in Purple Communications, Inc., which affects both non-union and union employers. In Purple Communications, the NLRB reversed its position and held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The employer can rebut this presumption by demonstrating that special circumstances necessitate a specific restriction to maintain production or discipline. Although this special circumstances justification could encompass a total ban on nonwork email use by employees, this would be a “rare case.”

The handbook provisions at issue in Purple Communications prohibited employees from using company email to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the company” or to send “uninvited email of a personal nature.” In reaching their decision, the NLRB reasoned that the ability of employees to communicate in the workplace is central to exercising their rights under the National Labor Relations Act, especially during an initial organizing campaign. Due to significant changes in technology, email is a critical means of communication which now serves as “the natural gathering place pervasively used for employee-to-employee conversations.”

This decision means that employees who have access to company email may use that email system during nonworking time in order to actively campaign on behalf of a union that is attempting to organize the company, even if such a position is contrary to the position of the company. The decision, however, does not require employers to provide email access to employees where employers have otherwise chosen not to grant any email access at all. Similarly, the decision does not require the company to provide access to the email system to third parties like a union. The decision also does not prevent employers from continuing to monitor employee use of company computer and email systems for legitimate management reasons. The NLRB specifically limited this decision to email without addressing other forms of electronic communications.

Employers who are concerned about running afoul of the Purple Communications decision should review their handbooks and any policies addressing employee use of company email systems. Employers should also review those classifications of employees to which they provide email access.

The Office of the General Counsel for the NLRB has recently updated its memo summarizing recent social media decisions.  The memo provides a reference for employers regarding the limitations on disciplining or terminating employees based on comments they make on FaceBook and other social media sites.

The first case summary in the memo is telling.  The Board held that a collections agency violated the National Labor Relations Act when it terminated an employee for an expletive-filled FaceBook rant disparaging the company and its decisions.  The Board reasoned that the termination was unlawful, along with the company’s policy, which prohibited:

“[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”

The Board noted that the company’s written policy did not provide an exception for engaging in Section 7 rights (the rights of employees to engage in protected, concerted activity).

Of course, it remains to be seen how courts would regard a similar set of facts. Nonetheless, the memo serves as yet another reminder of the Board’s take:  An employee may have a federally-protected right to badmouth her employer.   Here, a key factor was that several of the employee’s co-worker FaceBook friends joined in the rant.  Hence, the exchange amounted to concerted activity according to the Board.

Like most every other business and agency today, the NLRB is staying on top of social media.  Today, the Board’s acting general counsel issued a summary memo describing recent Board cases dealing with employee postings on Facebook and Twitter, as well as employers’ social media policies.  A copy of the summary is attached here.

The Board’s take on social media comes through clearly:  The current Board is aggressively positioning to find employee social media communications to be protected concerted activity.  The Board makes little distinction as to whether those communications occurred in a traditional way, such as a rally or speech, or through social media vehicles like a tweet or Facebook post.  (See Memo, page 4, relying on definition of concerted activity established in Meyers cases from 1984).

Similarly, the Board has repeatedly criticized employer policies that attempt to curtail what might be considered protected employee speech. 

The summary shows that Board is, however, willing to draw a line.  In determining that a news reporter’s offensive tweets, critical of a local TV station, were not protected, the Board’s summary memo explains: 

His conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.

There is no question that social media activity in the context of labor relations remains a hot button issue for the Board.  It appears to be a matter of applying old rules and interpretations to new forms of technology.  Thus, electronic communication policies that are too broad in their prohibitions will be challenged by the Board.  Similarly, the Board will closely scrutinize employment decisions based on tweets and Facebook posts.