On December 16, 2019, the NLRB reversed an Obama-era rule that permitted employees to use their employer’s email system for union organizing purposes. In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino , the NLRB held that, except in limited circumstances, employees have no right to use their employer’s email system for union organizing or other activity protected by the National Labor Relations Act.

Background . For almost as long as the NLRA has been in existence, courts and the NLRB have worked to strike a balance between employees’ right to self-organization and an employer’s right to control the use of its property. NLRB precedent generally permits employees to solicit one another during their non-working time and to distribute union literature during their non-working time in non-working areas. However, Board precedent generally did not restrict an employer’s right to control the use of its equipment . Indeed, the Board had applied that reasoning to allow management to maintain exclusive control of employer-owned televisions, bulletin boards, copy machines, telephones, and public address systems.

In 2014, however, in a case called Purple Communications the Board modified this principle for employer email systems. In that case, the Board held for the first time that employees had a legal right to use their employer’s email system to engage in organizing and other protected-concerted activity during non-working time. In Caesars, the Board overruled Purple Communications and returned control of employer email systems to employers.

The New Ruling . In overruling Purple Communications , the NLRB took note of the fact that prior NLRB rulings dealing with face-to-face solicitation had no relevance to an employer’s email system which creates a “virtual space in which the distinction between working and nonworking areas is meaningless.” Further, prior rulings involved circumstances in which the line separating working from nonworking time could be clearly perceived and understood by employers and employees alike – which is not the case with emails. Finally, the Board clarified prior rulings that focus on whether employees did indeed have “adequate” avenues of communication besides email to meaningfully communicate. Thus, in balancing the rights of employees and employers, an employer’s property rights must yield to the employee’s rights only when necessary to avoid creating an “ unreasonable impediment” to the right to self-organization.

The NLRB stated its view that oral solicitation and face-to face literature distribution still provide more than adequate avenues of communication and that there is no indication that these methods of communication have ceased to be available in the typical workplace. Moreover, in the modern workplace, nearly all employees have access to smartphones, personal email accounts, and social media. These are additional avenues in which employees can communicate with one another about workplace issues without using employer email. Therefore, there is no longer a basis for the Board’s earlier conclusion in Purple Communications that a prohibition on the use of an employer’s email system for non-work purposes creates an “unreasonable impediment” to self-organization. The NLRB also noted that even though an employer’s email system may be useful, convenient, and serve as an effective additional means for employees to engage in such discussions, the law does not require the most convenient or most effective manner of conducting those communications.

Thus, the Board held that an employer does not violate the Act by restricting the non-business use of its email system, absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination. The Board indicated they would recognize an exception to this general rule in “those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.”

Further, the NLRB stated that its decision would apply retroactively to all pending cases.

Takeaways. It is important to remember, the Board’s rules apply to union and non-union employees alike. The Caesars ruling by the NLRB permits an employer in most work settings to establish a rule prohibiting employee access to an employer-provided email system and IT resources for union organizing and other related purposes, provided that the employer uniformly applies that rule to all non-business use of the email system. If the employer permits employees to use the email system for personal communications, such as discussing sporting events, planning social gatherings, personal shopping on the Internet, and other non-work matters, it may run afoul of the NLRA by restricting access to those same systems for union organizing and other activity protected under the law.

Employers must carefully consider if they can implement and enforce such use restrictions in a consistent and nondiscriminatory manner.  

If you have any questions regarding the topics discussed in this edition of Compliance Matters, please call your firm contact in California at (818) 508-3700 or in North Carolina at (704) 765-1409, or visit us online at www.brgslaw.com.

Matthew T. Wakefield
Eric W. Mueller
David Harvey
Ballard Rosenberg Golper & Savitt, LLP