Handbook Alert – NLRB Restores Employers’ Right To Restrict Email Usage

Common sense and reason continue to prevail at the National Labor Relations Board!

On December 17, in the case of Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, the National Labor Relations Board (Board) reestablished an employer’s right to restrict employee use of its email system, overturning the highly controversial 2014 decision in Purple Communications, Inc.  In Purple Communications, the Board held, for the first time, that employees who have been given access to their employer’s email systems for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section of the National Labor Relations Act.

In Rio, the Board soundly rejected Purple Communications as an “unprecedented decision that impermissible discounted employers’ property rights in their IT resources while overstating the importance of those resources to Section 7 activity.” The Board reasoned that “an employer’s communication systems, including its email system, are its property” and that “employers have a property right to control the use of those systems.” As such, “employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.”

The Board reaffirmed that employees must have “adequate avenues of communication” in order to meaningfully exercise their Section 7 rights and that employer property rights must yield to employees’ Section 7 rights when necessary to avoid creating an “unreasonable impediment to the exercise of the right to self-organization.” It held, however, that in the typical workplace, oral solicitation and face-to-face literature distribution provide “more than adequate avenues of communication.” As such, employers should continue to use policies permitting employees to solicit during nonworking time and to distribute literature during nonworking time and in nonwork areas. Only in rare cases, however, where an employer’s email system furnishes the only reasonable means for employees to communicate with one another, should the employer be required to allow the use of its email system for solicitation or distribution during nonworking time.

As a result of this important victory, employers should review their handbooks and personnel policies related to email and other IT resources for any necessary modifications.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.