NRLB Reverses Prior Ruling on Employee Personal Use of Email

In yet another decision that reverses an Obama-era policy, the National Labor and Relations Board (NLRB) determined that employers can regulate their employees’ use of company email and other IT resources for non-work-related communications. Previously, Board held that employees with access to these resources for work had a presumptive right to use them on nonworking time for National Labor Relations Act (NLRA) Section 7 purposes, which include union organizing.

The NLRB, in its ruling on the case Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, clarifies that employers have the right to restrict work email to business purposes, with one exception: “in rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.” The decision reiterates that Section 7 activities are still permitted via oral solicitation and literature distribution face-to-face during non-working time, as well as personal email, smartphones, and social media. Since traditional workplaces have access to these forms of communication, the restriction on using an employer’s email system for non-work purposes is not unreasonable, according to the Board.

Attorney David Rosenfeld, who represented the union in the case, believes the decision to be a blow to worker advocacy groups and unions. “I think the ruling could also create a bigger problem for the Board and for employers,” he said. “No modern employer who restricts email access enforces that strictly. There will always be managers and others sending emails home saying, ‘I’m about to leave the office,’ so how do you enforce a policy like than in a non-discriminatory way?”

Employers must  make sure a policy restricting email and other IT resources is neutrally worded and applied equitably. If, for example, company email can be used to discuss weekend plans or share family picture but not to solicit union support, that violates the NLRA.  If you have concerns regarding your email/IT policies, we are happy to help.

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