NLRB Permits Employers to Restrict Employee Access to Company E-mail

On December 16, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, the National Labor Relations Board (Board) returned to the standard outlined in Register Guard, which announced that employees have no statutory right to use employer equipment, including IT equipment, for activity protected under Section 7 of the National Labor Relations Act.¹ The decision expressly overrules the Board’s decision in Purple Communications, Inc.² However, the Board recognized an exception for rare circumstances where the employer’s e-mail system is the only means of communication for employees.

As a result of the decision, employers can enact and enforce policies prohibiting employees from using the employer’s e-mail systems for nonbusiness purposes, including Section 7 activity, unless there is proof employees would otherwise be deprived of any reasonable means of communicating with each other or proof of discrimination. Section 7 of the National Labor Relations Act protects employees’ rights to engage in union activities or to engage in concerted activities with other employees for mutual aid and protection, among other protections.

In making its decision, the Board heeded the admonition of the Supreme Court that “[a]ccomodation between [employees’ organizational rights and employers’ property rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other.”³  The Board recognized an employer’s e-mail system is its property, and employers have the right to control the use of its systems. To meaningfully exercise their Section 7 rights, employees must only have adequate avenues of communication, but employees are not required to have the most convenient means of conducting these communications. In fact, the Board noted that despite the increased use of technology in the workplace, there is no reason to think that traditional means of communication, including face-to-face literature distribution and oral solicitation, have ceased to be available.

For assistance in implementing these policies, for specific questions about this opinion, coverage under the National Labor Relations Act, or labor-related claims in general, please contact your Dinsmore attorney.