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Employer’s Right to Prohibit Employees’ Use of Work Email for Nonbusiness Purposes Re-established by NLRB Decision

January 3, 2020

Employees no longer have a right under the National Labor Relations Act (“NLRA”) to use employer-provided email during nonwork time for union organizing purposes.

In Caesar’s Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (Dec. 16, 2019), the National Labor Relations Board (“NLRB” or “Board”) held that an employer may prohibit employees from using employer-provided computer resources to “[s]end chain letters or other forms of non-business information,” largely reinstating the legal doctrine earlier articulated in Register Guard, a 2007 NLRB decision. The NLRB majority overturned an intervening Board case, Purple Communications Inc., issued in 2014 during the Obama administration, that held that employees have a statutory right to use employer-provided email during nonwork time for “concerted protected activity” under Section 7 of the NLRA, including union organizing, previously reported here.

The issue in Caesar’s Entertainment was the appropriate balance between an employer’s property right in controlling use of its equipment and an employee’s right to form, join, or assist a union, and to engage in other “concerted activity” that is protected by Section 7 of the NLRA.

The Board noted that the United States Supreme Court has long held that employer property rights must yield to NLRA rights where it is necessary to avoid creating an “unreasonable impediment to the exercise of self-organization.” The Board ruled, however, that the current technological landscape provides ample methods of communication for Section 7 purposes beyond employer-provided email. For example, the vast majority of employees have smartphones, personal email accounts, and use of social media, each of which can be utilized to communicate for Section 7 purposes.

Further, while employer-provided email may be a particularly convenient way to communicate, the NLRA does not compel an employer to provide the “most convenient or most effective means of conducting [Section 7] communications.”

Accordingly, and contrary to one Board Member’s dissent, the Board majority found that “an employer does not violate the Act by restricting nonbusiness use of its [information technology] resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.”

Significance for Management and Next Steps

Employers in private industry may now lawfully prohibit employees’ use of employer-provided email for nonbusiness purposes unless:

(1) the employees have no other reasonable way to communicate with each other regarding potential union organizing and other NLRA Section 7-protected, concerted activity; or,

(2) there is proof of discrimination by the employer in enforcing its rules selectively against Section 7-protected activity, e.g., union organizing.

Due to the pervasive use of cell phones, employees in the vast majority of workplaces will not be able to argue credibly that employer-provided email is the only reasonable way to communicate, regarding potential union organizing. Prohibiting employees’ use of employer provided email for Section 7 activity while allowing use for other nonbusiness purposes likely will be found to violate the NLRA (note that executives, managers and supervisors are not entitled to the protections of the NLRA).

Employees in many, if not most, workplaces frequently use work email for nonbusiness purposes — e.g., to communicate with family, friends, and even coworkers about many topics and activities unrelated to work — without disciplinary penalty. If an employer promulgates a ban on employees using employer-provided email for all nonbusiness purposes, the employer will violate the NLRA if the employer applies it in a discriminatory manner by enforcing the ban only for union organizing or other Section 7-protected activity while allowing employees to use email for other nonbusiness purposes.

Employers should carefully review both their email policies and how those policies are applied in practice to assure compliance with the decision in Caesar’s Entertainment.

Please do not hesitate to contact any of our attorneys if you have any questions regarding this issue or would like assistance reviewing and updating your company’s email policies.