- An employer can restrict employee use of its email system if it does so in a way that does not discriminate against union communications or other protected communications, the National Labor Relations Board (NLRB) has ruled, undoing the high-profile Obama-era Purple Communications standard (Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143).
- In 2014, NLRB concluded that employees with access to their employer’s email system for work-related purposes had a right to use that system, during non-work time, for communications protected by Section 7 of the National Labor Relations Act (NLRA). The new decision, which the Board reached after seeking and receiving public input, overrules the 2014 ruling and holds that employees do not have a statutory right to use employers’ email and other IT resources to engage in non-work-related communications.
- The new decision provides an exception when employer-provided email is the only reasonable means for employees to communicate with one another during non-work time over the course of the workday.
The NLRA protects workers who engage in "concerted activity," even if they are not unionized or attempting to unionize. The definition of protected concerted activity is broad and according to NLRB can include talking with co-workers about pay or other working conditions; petitioning for better hours; refusing to work in unsafe conditions; and joining together with colleagues to confront an employer, government agency or the media about workplace issues.
Many employers (including Lowe's and Burger King) have found themselves in hot water recently after trying to crack down on worker conversations about pay. In general, action against employees — even if it's just threatened — tends to get attention from the NLRB if concerted activity is involved. However, hollering at workers on protected heat breaks to "get back to work" was not found to violate the NLRA in one recent case because there was no indication that adverse action was contemplated, even though the order was made in an aggressive, loud manner.
Caesars Entertainment is one of several employer-friendly moves NLRB has made during the Trump administration's tenure; more may be on the way, but hurdles remain.