On December 17, 2019, in a 3-1 decision split along party lines, the National Labor Relations Board (NLRB) restored to employers the right to restrict employees from using company email systems for nonbusiness purposes. The decision, issued in Caesars Entertainment Corp., reverses the NLRB's 2014 ruling in Purple Communications, which held that workplace rules prohibiting employee email use for union activity were presumptively invalid under Section 7 of the National Labor Relations Act (Section 7). Because Section 7 applies to all employers, not just unionized ones, this NLRB ruling affects almost every U.S. employer that provides a corporate email system.
The Caesars ruling effectively reinstates the NLRB's 2007 decision in Register Guard, which held that because a corporate email system is the employer's property, an employer may ban all non-business email communications, including communications protected by Section 7. Specifically, in Caesars, the majority said, "Employees have no statutory right to use employer equipment, including IT resources, for . . . Section 7 purposes." However, the decision does add an exception to the Register Guard standard, allowing employees to use company email when it is "the only reasonable means for employees to communicate with one another."
The Caesars decision follows extensive briefing by interested parties, including union and management interests. The U.S. Chamber of Commerce and other management associations argued for reversal of Purple Communications and a return to the "longstanding law" reflected in Register Guard. They emphasized that enforcing restrictions on non-work email only during working time, as required by Purple Communications, was infeasible in practice. They also argued Purple Communications gave too little weight to employer interests in their communication systems and violated the First Amendment by requiring employers to subsidize hostile speech.
The AFL-CIO, National Nurses United, and other union interests argued in favor of upholding Purple Communications, claiming that decision struck the right balance between employee rights and management interests. Unions emphasized the centrality of email to modern office communications.
The current NLRB majority agreed with the employer and its supporting amicus briefs. It concluded that Section 7 does not grant employees a statutory right to engage in Section 7 protected concerted activity by way of company-owned email systems. In so holding, the NLRB found, "in the typical workplace . . . oral solicitation and face-to-face literature distribution provide more than 'adequate avenues of communication.'"
Under Caesars, employer policies prohibiting all personal use of company email systems are to be deemed "facially neutral" and, as such, presumptively lawful under Section 7. Employers should keep in mind, however, that spotty enforcement of a "business only" rule may still result in employees having the right to discuss union organizing activities over company communication systems. That is, employers that allow employees to discuss birthday parties, sporting events, and other non-work matters via company email or other company-owned electronic messaging system will not be able to prohibit discussions of union-related matters. In light of the Caesars decision, employers should consider whether they are capable of enforcing a blanket "work use only" policy, and whether they would be willing to do so.
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