NLRB Reverses Purple Communications – Holds Employer May Restrict Employees’ Use of Email and Other Information Technology Systems

On December 17, 2019, the National Labor Relations Board (“Board”) ruled that an employer’s rule prohibiting use of its email system for nonbusiness purposes did not violate employees’ rights under the National Labor Relations Act. The 3-1 decision in Caesars Entertainment Corp d/b/a Rio All-Suites Hotel and Casino, NLRB Case No. 28-CA-060841, overturns the Board’s 2014 decision in Purple Communications, which held that work rules prohibiting employees from using employer-provided email systems for union activity were presumptively invalid.

According to the Caesars Entertainment majority, employees “do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications.”  “Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate” against activities protected by Section 7 of the National Labor Relations Act, such as discussing wages, hours, and terms and conditions of employment.

In overturning Purple Communications, the Board effectively reinstated a prior 2007 decision known as  Register Guard, with one exception.  Under Caesars Entertainment, employees may lawfully use an employer’s email and IT resources for Section 7 activities when they are “the only reasonable means for employees to communicate with one another.”

What This Means

Many employers rewrote their employee handbooks and work rules as a result of Purple Communications.  In light of Caesars Entertainment and some other recent decisions by the NLRB, employers should considering revisiting their employee handbooks and policies and determine whether changes to comply with the new developments make sense for their business.  Employers that decide to implement a work rule banning employees from using company-provided email or IT resources for Section 7 activities, however, must ensure that they implement any such rule in a neutral and non-discriminatory manner.  In other words, “business use only,” must truly mean “business use only.”