On December 16, 2019, the National Labor Relations Board (“NLRB”) issued a decision in Caesars Entertainment holding that businesses may restrict employees from using a company’s internal email systems for union and organizing activities. In so ruling, the NLRB overruled a five-year old board decision, Purple Communications, Inc., and returned to its previous stance that such restrictions on company email use is proper. The NLRB also ruled in Caesars Entertainment that it would apply its decision retroactively to pending cases.
In Caesars Entertainment, the NLRB ruled that an employer’s facially neutral computer rules, which restrict employees from using the employer’s computer systems for reasons unrelated to the employer’s business, does not violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The NLRB explained that “there is no statutory right for employees to use employer-provided email for non[-]work.” In reaching its conclusion, the NLRB balanced an employer’s property interest in its email systems, and employees’ rights in union activities. Under long-standing NLRB decisions, employees may engage in face-to-face organizing, and distribute organizing literature (in nonworking areas on nonworking time) at the workplace. And in the modern workplace, employees have access to smartphones, personal emails, and social media accounts—which provide additional means to exercise one’s right to organize. Because employees have ample means to organize, the NLRB saw no reason to allow employees to continue to intrude on an employer’s email system.
Nevertheless, the NLRB included some critical caveats. First, an employer’s technology rule must be facially neutral and applied in a non-discriminatory way. Put differently, employers’ email policy may not target union activities. Second, the NLRB noted that in some cases, an employer’s email system will provide the only reasonable mean for employees to communicate with one another. In these cases, an employer’s property interest in their email system would yield to ensure employees have adequate means to exercise their NLRA rights.
Because of Caesars Entertainment, employers may prohibit employees from using their work emails to organize. Going forward, however, employers should take great care to enforce their policy prohibiting non-work related activities evenly. What’s more, employers that do not have a centralized work place may need to allow employees to use their email systems for organizing activities if no other means are available. Moreover, a change in presidential administrations also may result in a change in NLRB policy.