In a recent decision, the National Labor Relations Board (NLRB) ruled in Caesars Entertainment that barring the use of company email system for non-business purposes didn’t violate the National Labor Relations Act (NLRA). This decision largely restores the right for employers to restrict the use of company email for non-business purposes, reversing the 2014 Purple Communications decision.
In Purple Communications, the NLRB ruled that under the NLRA, employees who have access to an employer’s email system as part of their job generally have a right to use company email systems for union organization and Section 7 protected activities, with some limitations. Purple Communications was a controversial decision that overruled the board’s 2007 Register Guard decision, which confirmed employers’ right to restrict such usage.
Then in 2018, a newer Board under a different administration indicated it was considering modifying or overruling the Purple Communications decision when it invited interested parties to submit briefs on the matter. After receiving and considering 19 briefs, the Board decided to overrule the Purple Communications decision and hold that employees didn’t have the right to use employer equipment such as email and other IT resources for Section 7 purposes, effectively reinstating the holding of the 2007 Register Guard decision.
The Board explained that Purple Communications undervalued employers’ property rights in their IT resources and overstated the importance of those resources to Section 7 activity. Employers now retain the right to control the use of their equipment, including IT resources, as long as they don’t discriminate against union or other protected communications.
Furthermore, the Board also created an exception to the rule for circumstances where company email is the only reasonable means of communication for employees during the workday. The Board didn’t define the scope of this exception, but stated only that it expected such cases to be rare and should be considered on a case-by-case basis.
While employers may again restrict employees’ personal use of company email and IT resources, employers must be mindful of how they craft and enforce such restrictions, specifically ensuring they are not discriminatory. For example, if you allow employees to use company email to discuss their favorite shows, plans for the weekend or thoughts on the new Star Wars movie, you may not be able to prohibit discussion of union-related matters. Employers should consult with legal counsel if they have any concerns regarding their email/IT resources policies.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
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