In 2014, the NLRB held in Purple Communications that employers must allow their employees to use company email systems to engage in union activities and other protected conduct under the National Labor Relations Act. Last year, we reported that the NLRB was set to re-examine the controversial Purple Communications decision. The Board did just that in issuing its December 16 decision in Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino.
In Caesars, a Las Vegas hotel implemented a policy barring its employees from using the hotel’s email system to send any non-business information to one another. Employees filed an unfair labor practice charge alleging that the rule unlawfully restricted their rights under Section 7 of the NLRA pursuant to the Board’s Purple Communications rule. An administrative law judge analyzed the policy in accordance with Purple Communications and agreed with the hotel’s employees. The judge held that the hotel’s rule unlawfully interfered with employees’ rights to engage in union and other activity protected by Section 7 of the Act.
The employer appealed to the NLRB. In turn, the Board invited the parties and other interested stakeholders to submit briefs. Over one year later, the Board overturned Purple Communications and ruled that the hotel’s policy is lawful. The Board determined that in most workplaces, sufficient means of communication exist such that employees have no statutory right to engage in Section 7 activity through their employers’ email systems. In other words, employers may prohibit employees from using company-owned email systems to send non-business communications, even during non-working time.
Employers should note that the general rule in Caesars is not absolute. The Board recognized that in rare instances where the employer’s email system is the only reasonable means of employee communication with one another during non-working time, employees must be permitted to engage in Section 7 activity through the email system. Moreover, consistent with prior Board case law, employers must still refrain from implementing policies that specifically prohibit Section 7 activity, or which single out protected activity for restriction.
If you changed your policy following Purple Communications, you may consider changing it back. All things considered, the Board’s Caesars decision is another big win for employers under the Trump-era NLRB. If you have any questions about how the ruling impacts your company’s right to control its electronic resources, feel free to contact any member of our Labor and Employment Group.