Reversing a 2014 Obama-era decision, the National Labor Relations Board (NLRB) recently ruled that employees do not have a statutory right to use employers' email to engage in non-work-related communications.

In Caesar's Entertainment Inc. d/b/a Rio All-Suites Hotel and Casino, the NLRB analyzed a complaint challenging an employer's handbook rules on computer usage. Among other restrictions, the handbook stated that computer resources may not be used by employees to "send … non-business information" or "solicit for personal gain or advancement of personal views." The complaint alleged that these handbook rules amounted to a violation of Section 7 of the National Labor Relations Act, which protects workers who engage in "concerted activity" regardless of whether they are union members.

According to the NLRB, the definition of protected concerted activity is broad and may include co-workers discussing pay or other working conditions.

The NLRB had previously considered this issue in Purple Communications, Inc., 361 NLRB 1050. In that 2014 case, the Board found in favor of the employees, holding that email was a "natural gathering place" akin to a break room or employee cafeteria, and by extension finding that an employer who provided an employee access to its email system could not prohibit the use of the system for Section 7-protected communications on nonworking time absent a showing by the employer of special circumstances.

In other words, the Board found that employees given access to their employer's email system have a presumptive right to use that system for communications protected by Section 7 of the National Labor Relations Act. Consequently, many employers rewrote their employee handbooks.

The new decision in Caesar's Entertainment overrules Purple Communications, clarifying that "[e]mployees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes." The current Board expressed its view that Purple Communications "demonstrated an unreasonable indifference to employer property rights" and was wrongly decided. It noted that in the "typical workplace" employees have adequate avenues for engaging in protected activity without infringing on their employer's property rights.

In this case, Caesar's Entertainment had cafeterias, break rooms and other non-work areas where employees could engage in non-work-related solicitation and distribution. The NLRB pointed out that in "modern workplaces" employees also have access to smartphones, personal email accounts and social media, which provide additional avenues of communication. As such, there was no reason to conclude that a prohibition on the use of an employer's email system for non-work purposes in the typical workplace creates an "unreasonable impediment to the exercise of the right to self-organization."

The ruling emphasized that the National Labor Relations Act "does not require the most convenient or most effective means of conducting [protected] communications[,]" concluding that "efficiency and convenience alone" are insufficient to negate an employer's right to regulate use of its IT systems.

However, the Board did recognize an exception to let workers use company email in the "rare cases where an employer's email system furnishes the only reasonable means for employees to communicate with one another." Nonetheless, it confirmed that "an employer's communication systems, including its email system, are its property" and "employers have a property right to control the use of those systems."

Caesar's Entertainment thus once again affords employers greater latitude in prohibiting the non-work use of their equipment and resources, assuming use of the employer's communication systems is not the only reasonable means for employees to communicate with each other regarding potential protected activity. Given the omnipresence of cell phones, however, and the Board's observance that exceptions will be "rare," it appears likely that the vast majority of workplaces will have multiple "reasonable means" for employees to communicate.

Employers interested in limiting their employees' use of the company email system should, however, ensure their work rules clearly restrict such use before invoking them as a basis for discipline. Further, rules regarding email and/or computer use must be consistently applied and enforced in a non-discriminatory and non-retaliatory manner. The NLRB explicitly warned that policies restricting the non-business use of IT resources are illegal to the extent they treat unions differently than similar outside organizations.

Thus, workplace rules must not discriminate against union-related communications or other protected concerted communications. As always, employers should consult with a qualified attorney before altering rules that may impact employee rights under the National Labor Relations Act.

Danny Ramón is a partner at Seyferth Blumenthal & Harris, LLC in Kansas City, Missouri. He concentrates his practice in employment law and general civil litigation, at the trial and appellate level, and his experience covers a wide range of subject areas including: employment discrimination and retaliation lawsuits; enforcement of covenants not to compete; drafting of employee handbook and other agreements; and complex business disputes, including those involving trade secrets, contracts, fiduciary duties, and insurance litigation. Danny also counsels employers on compliance with state and federal statutes.

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NLRB restores employer's right to restrict use of email

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