NLRB restores employers’ right to control email, IT systems

On December 16, 2019, the National Labor Relations Board (NLRB) issued a major decision restoring employers’ property rights in the use of email and other IT resources. In Caesar’s Entertainment, the NLRB held that employees have no statutory right to use employer equipment, including computer resources, to organize or engage in other protected, concerted activities under Section 7 of the National Labor Relations Act. Accordingly, the Caesar’s Entertainment decision overruled the NLRB’s prior precedent established in its Purple Communications decision.

In Purple Communications, the NLRB reasoned that email was a natural gathering place akin to a breakroom or employee cafeteria. Therefore, if an employer provides access to its email system, it could not prohibit the employee from using the system for Section 7 activity during nonworking time. The NLRB reasoned that the employee’s use of such systems was governed by the framework established in a U.S. Supreme Court case, Republic Aviation v. NLRB.

The employer in Caesar’s Entertainment was a Las Vegas casino that maintained an employee handbook prohibiting employees from using “computer resources” to share confidential information with the general public, display offensive or profane information, send chain letters or non-business information, or solicit for personal gain or advancement of personal views.

In analyzing the employer’s policy, the NLRB looked to the framework established in Republic Aviation, which provided that employees must have adequate avenues of communication to meaningfully exercise Section 7 rights. Also, employers’ 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.

With this framework, the NLRB reasoned in Caesar’s Entertainment that the typical workplace provides more than adequate avenues of communication, such as access to:

• smartphones
• personal email accounts
• social media
• distribution of literature in nonworking areas during nonworking time

Therefore, there was no basis for concluding that a prohibition on the use of an employer’s email system for non-working purposes in the typical workplace creates an unreasonable impediment to the exercise of the right to self-organization.

The NLRB, however, left open the possibility for an exception to this rule for rare cases in which an employee’s work email is “the only reasonable means for employees to communicate with one another.”

This is an important decision for employers as it re-establishes property rights in the use of company email or other computer resources, thus, allowing employers to prohibit the use of their email systems for non-business purposes. In light of this new decision, employers should consider revising their employee handbook provisions and should consult experienced employment attorneys in doing so.