NLRB Permits, Again, Employers to Restrict Use of Email – Maybe
Posted on 01/22/2020 at 02:25 PM by Russell Samson
Prior to 2014, NLRB case law gave an employer the right to control its property. The NLRB tempered that right when an employer exercised it in a way that discriminated against activities protected by Section 7 of the National Labor Relations Act. Thus, facially neutral policies or rules regarding the permissible uses of an employer’s email systems were lawful even if they may have had an incidental effect of limiting the email system’s for union-related communications. (Rules that are not facially neutral – e.g., banning only union-related communications – were, of course, unlawful interference with Section 7 rights.)
In its 2014 decision in Purple Communications, Inc. the Obama-majority Board ruled 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 nonworking time, for communications protected by Section 7 of the Act – e.g., to engage in union activities and other protected conduct.
Caesars Entertainment Inc. had a policy for employees of its Rio All-Suites Hotel and Casino in Las Vegas barring them from using Rio’s email system to send any non-business information to one another. An unfair labor practice charge was filed, alleging that the rule unlawfully restricted rights under Section 7. In 2012, an Administrative Law Judge (ALJ) of the NLRB determined that the Rio’s computer / email use policy was lawful under then-current Board standards. His decision was appealed to the Board itself, and in 2015, the Board determined to remand so much of the decision as involved the computer / email use to be reconsidered in light of its Purple Communications decision.
In 2016, a second NLRB ALJ determined that so much of the Rio’s rules as involved emails were presumptively unlawful, and violated Section 8(a)(1) of the Act. On August 1, 2018, in response to a second appeal, the NLRB issued a Notice and Invitation to File Briefs on questions surrounding whether the Board should adhere to, modify or overrule Purple Communications.
On December 16,* 2019, the NLRB overturned Purple Communications, and ruled the Rio’s email use policy was lawful. The three-member majority determined that in most workplaces, there are sufficient means of communications such that employees do not have a statutory right to use their employers’ email and other information-technology 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 union or other protected concerted communications.” (*This latter statement is taken from December 17, 2019 Press Release issued by the NLRB’s Office of Public Affairs, announcing, “In a decision issued today.” Through the magic of information technology, after the December 17, 2019 issuance, the dates were changed on the Board’s website to reflect the decision being issued on December 16, 2019 – the last day of Member Lauren McFerran’s term. Thus the asterisk.)
In overturning Purple Communications, the Trump-Board majority did not adopt an iron-clad rule. Rather, they recognized that it has long been the “Board precedent” rule that employees must have some adequate avenue to engage in communications protected by Section 7. Thus, where the employer’s email (or other IT system) is the only reasonable means of employees communicating with one another during non-working time during the workday, employees must be permitted to engage in Section 7 activity through the email system.
As is reflected in the quotation from the press release above, the Caesars decision did nothing to disturb prior Board case law that prohibits an employer from implementing policies that specifically prohibit or otherwise single out for restriction, Section 7-protected activity.
On January 9, 2020, the International Union of Painters and Allied Trades (which was the charging party in the Caesars case) and the Communications Workers of America (which was not a party to Caesars decision, but was a party to Purple Communications) filed briefs with the NLRB, asking the Board to reconsider its ruling. Included in the arguments advanced were that Board Member William Emanuel should have recused himself because the law firm where he worked prior to being appointed to the Board represented Purple Communications. On December 16, 2019 – the date the Board now asserts the Caesars decision was issued – the Board had four members. Had Emanuel recused himself, the decision would have been two to one. But now Lauren McFerran’s term has ended, and there are only three “confirmed by the Senate” members of the Board. A five-person majority of the Supreme Court in New Process Steel, L.P. v. N.L.R.B. said that so long as there were three members of the Board, two members could act as a quorum, “if, for example, the third member had to recuse himself from a particular matter.” But that was dicta.
Caesars Entertainment filed oppositions to both motions on January 16, 2020.
An employer which either changed its “email / IT usage” policies following the Purple Communications decision, or which first adopted “email / IT usage” policies while Purple Communications was the law may wish to consider, after consultation with labor counsel, changing policies to reflect the current state of the law.
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