Continuing its trend of employer-friendly decisions, the National Labor Relations Board (“NLRB” or “Board”) found that employers can ban employees from using company email for union organizing.  Caesars Entertainment Inc. 368 NLRB 143.  This ruling overturns Purple Communications, which the Board issued in 2014 under the previous administration.  The Board in Purple Communications had overturned a prior decision in Register Guard, and found that employees who have company email are entitled to use the email to engage in discussions that are protected by Section 7 while on non-working time.

The Board in Caesars, however, determined that Register Guard had been correctly decided when it concluded that there is no statutory right for employees to use employer-provided email for nonwork, Section 7 purposes in the typical workplace.  The Board reasoned that an employer has a right to control its IT resources, and generally, employees have adequate avenues of communication other than employer-provided email, including oral communications, smartphones, personal email, and social media.  The Board recognized an exception in the rare case where an employer’s email system is the only reasonable means for employees to communicate with each other.  Thus, the Board concluded that an employer can restrict the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other.  This decision will be applied retroactively to all similar pending cases.

Takeaway

Employers should review their handbooks (e.g., computer use and email policies, house rules). Companies that revised their policies after Purple Communications may revert back to prior language and delete the provisions allowing the use of email for Section 7 activity.  Policies may now prohibit the use of employer-provided computer resources for nonwork purposes, assuming employees have other reasonable means of communicating with each other.