On December 16, 2019, the National Labor Relations Board (the “Board”) issued a new decision that strengthens employers’ right to restrict employees from using company email for non-work reasons. Caesars Entertainment, No. 28-CA-60841 (NLRB Dec. 16, 2019). In so doing, the Board overruled its controversial 2014 decision in Purple Communications, which held that employee use of an employer’s email systems for statutorily protected communications under Section 7 of the National Labor Relations Act (“NLRA”) (e.g., discussing terms and conditions of employment and/or union organizing) on nonworking time must presumptively be permitted by employers who give employees access to their email systems, even if all other nonwork use of such systems is prohibited.
Specifically, in Caesars Entertainment, the Board held that an employer does not violate the NLRA by establishing or enforcing restrictions on the nonbusiness use of its IT resources—including email—unless either:
(1) “there is proof that employees would otherwise be deprived of any reasonable means of communicating with each other”; or
(2) there is “proof of discrimination” in the establishment or enforcement of the restrictions.
The Board explained that the first exception would apply in “rare” circumstances where the email system “furnishes the only reasonable means for employees to communicate with one another.” The Board underscored the difficulty of proving this exception applies by referencing the fact that “in modern workplaces employees also have access to smartphones, personal email accounts, and social media, which provide additional avenues of communication” other than employer-provided email.
As for the second exception, in determining whether email restrictions are lawful and not discriminatory, employers should consider the Board’s 2007 decision in Register Guard (which had itself been overruled by Purple Communications). In Register Guard, the Board gave examples of when discrimination in access to Company email might exist, including when an employer “permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.” On the other hand, the Board explained that “nothing in the [NLRA] prohibits an employer from drawing lines on a non-Section 7 basis,” such as “between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.” The Register Guard Board also noted that if the evidence proved that the employer’s motive for line-drawing was antiunion, that too could violate the NLRA.
As a result of the Caesars Entertainment decision, employers should review their employee handbooks and other policies and procedures to determine whether it is sensible to make any changes to reflect this change in the law. For more information on this development or other labor and employment questions, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.