Nearly eighteen months ago, this blog asked whether employers will get their email system back. Last month, the NLRB answered with a resounding “yes”! In Caesars Entertainment, 368 N.L.R.B. 143 (2019), the NLRB overturned its prior decision in Purple Communications. In doing so, the NLRB returned to its rule that employers may limit employee’s use of the employer’s IT resources if it does so in a non-discriminatory fashion.
For those who have followed this issue, the regulation of the use of employer’s email is a fine example of the “pendulum” effect in NLRB precedent, particularly over the last decade, or maybe even two. The NLRB has long recognized that employers have the right to regulate the use of their property and equipment. The NLRB has always balanced that right against employees’ right to engage in protected, concerted activity.
The NLRB was originally presented this question in 2007, during the Bush II Board. The NLRB held then, in case called Register Guard, that an employer could prohibit non-business use of its email system. Seven years later, the Obama Board reversed Register Guard in Purple Communications. The Obama Board weighed the interests differently. It believed that an employer’s property interests had to yield to the employee’s right to utilize those systems for union or other concerted purposes.
In its most recent decision, the NLRB has returned to the Register Guard rule. It did so after considering amici briefs submitted by a number of employer and labor organizations. The Trump Board viewed employer email systems as similar to employer-owned televisions, bulletin boards, copy machines, telephones and public address systems. The NLRB has previously ruled that employers may prevent employees from using all of this equipment for union organizing or other concerted activities.
Significantly, the NLRB majority did recognize that there may be situations in which the employer’s rights must yield. For example, the majority acknowledged that there may be cases in which the email system is the only reasonable means for employees to communicate with one another. In such a case, employees may have a right to utilize the employer’s email system. The NLRB left the nature and extent of that exception, however, to future cases.
Member McFerran (D) wrote a dissenting opinion. McFerran argued that Purple Communications was properly decided and, importantly, recognized the realities of the modern workplace in which email has “effectively become a ‘natural gathering place’ pervasively used for employee-to-employee conversations.”
For the labor professional, the NLRB’s decision brings the issue of employer restrictions on use of its IT equipment full circle. Indeed, the NLRB recognizes that its rule in Caesars Entertainment applies not only to email resources, but other IT resources. Employers with a concern about limiting the use of their IT equipment, therefore, should review their policies to determine whether the NLRB’s decision is one that suggests any changes to their policy or approach.