Shortly before Christmas, the National Labor Relations Board re-established the right of an employer to restrict employee use of its email systems to business use only, if it does so on a nondiscriminatory basis. The new decision overrules the standard set in the 2014 Purple Communications, Inc. case and returns to the standard set in the 2007 Register Guard case.
At issue is when employers can restrict the use of their e-mail and other information technology (IT) systems and when doing so interferes with employee rights guaranteed in Section 7 of the National Labor Relations Act (NLRA). In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, the Board overruled the controversial case of Purple Communications, Inc., and held that employees do not have a statutory right to use employers’ email and other information-technology (IT) systems to engage in non-work-related communications, including Section 7 protected, concerted or union activity.
In Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7. But the new decisions change the standard, giving more weight to employers’ property rights that the previous decision. The Board reestablished that employers have the right to restrict the use of their equipment, including their email and other IT systems to business and work-related use, provided that in doing so, they do not discriminate against the union or other protected concerted communications. Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the NLRA, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.
The Caesars Entertainment decisions reaffirm a long line of decisions holding that the NLRA generally doesn’t restrict an employer’s right to control the use of its equipment. The National Labor Relations Board’s (NLRB) decision to allow employers more leeway in restricting the use of their email and other communication systems for union organizing is just the latest decision reversing standards set by the Obama-era Board. If your employee handbook or work rules were revised in 2016 or after to comply with Purple Communications, you may wish to reconsider returning to a business-use-only position in 2020.
Guest Blog Editor: Spognardi Baiocchi LLP, is a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs. www.psb-attorneys.com.
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