On Tuesday, December 17, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143, the National Labor Relations Board (the Board or NLRB) held that an employer may restrict the use of its email system if it does so on a non-discriminatory basis, effectively reinstating the holding of Register Guard, 351 NLRB 1110 (2007). This is one of several employer-friendly decisions issued by the Board this week.
Five years ago in Purple Communications, Inc., 361 NLRB 1050 (2014), the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on non-working time, for communications protected by Section 7 of the National Labor Relations Act (the Act). This ruling severely restricted employers’ ability to prevent employees from using their email systems for non-work related purposes, including for unionization purposes.
In Tuesday’s ruling, the Board held that “employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.” Rather, employers have the right to control the use of their equipment, including their email and other IT systems. Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the Act, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.
The Board’s ruling is a win for employers, who will once again be able to restrict employees’ use of their email and other IT systems for non-work related purposes. Employers, however, must be careful to ensure that these restrictions are non-discriminatory; i.e., employers must not allow employees to use their systems for certain non-work related purposes, such as fantasy football, while prohibiting employees from using them to engage in protected communications, such as unionization. Discriminatory enforcement of these restrictions may lead to the filing of unfair labor practice charges.