Labor & Employment / 01.23.2020

Employers Regain Control Over Employee Email Systems After NLRB Ruling

By Rob Gilmore & Kirsten Mooney

employee emailOn December 17, 2019, the National Labor Relations Board (NLRB) overruled its previous 2014 decision in Purple Communications, 361 NLRB 1050 (2014), which allowed employees to use their work email for union business. Purple Communications specifically held that an employer’s rules or regulations in prohibiting employees from using company email for union matters were presumptively invalid and violated Section 7 of the National Labor Relations Act (NLRA). In other words, under Purple Communications, employers could not prevent employees from using employer email systems to organize or engage in protected concerted activities under the NLRA. Purple Communications, itself, overturned the NLRB’s years’ long precedent.

However, NLRB’s recent 3-1 decision in Ceasars Entertainment Corp., 368 NLRB No. 143 (2019), held that an employer who prevents the use of employer-owned equipment, including electronic mail and other IT systems, for nonbusiness purposes (including union matters) does not violate Section 7 of the NLRA. In Ceasars, the union filed an unfair labor practice charge accusing Ceasars (as the employer) of illegally restricting employee computer usage because it banned employee’s use of the computer for “non-business purposes.” Oral and written arguments by Ceasars’ counsel along with numerous amicus briefs were presented to the Board in favor of overturning Purple Communications. The arguments for overturning included, among other things, that Purple Communications attached too little weight to employer property interests and impracticablity to carry out such a rule in the actual workplace.

Ultimately, NLRB sided with Ceasars (and all employers) and held that, “an employer does not violate the [NLRA] by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.” Thus, the Board did carve out one exception to its holding, permitting employees to use company email for nonbusiness purposes when it is the “only reasonable means for employees to communicate with each other.” However, it is likely that these circumstances are rare as many employees have both a work and personal email address at their disposal.

Following Purple Communications, employers’ rights to their own property crumbled under the clout of employees’ rights to organize and engage in protected concerted activities under Section 7 of the NLRA. Now, however, employers have regained some of the rights to their own property, equipment and resources – an important win for companies and businesses throughout the United States. Employers should, therefore, make sure to take advantage of this recent Board ruling, and review and revise workplace email policies.

For more information on the NLRB’s recent ruling or how to revise your employment policies, please contact Rob Gilmore at rsg@kjk.com or 216.736.7240, Kirsten Mooney at kbm@kjk.com or 216.736.7239, or reach out to any of our Labor & Employment professionals.

 

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