NLRB Restores Employers' Right to Restrict Use of Email | Practical Law

NLRB Restores Employers' Right to Restrict Use of Email | Practical Law

In Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, the National Labor Relations Board (NLRB) held that an employer has the right to restrict employees' use of the employer's email system if done on a nondiscriminatory basis.

NLRB Restores Employers' Right to Restrict Use of Email

Practical Law Legal Update w-023-4046 (Approx. 4 pages)

NLRB Restores Employers' Right to Restrict Use of Email

by Practical Law Labor & Employment
Published on 23 Dec 2019 • USA (National/Federal)
In Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, the National Labor Relations Board (NLRB) held that an employer has the right to restrict employees' use of the employer's email system if done on a nondiscriminatory basis.
On December 16, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, a 3-1 majority of the panel (Board) heading the NLRB's judicial functions held that:
  • Employees do not have a statutory right to use their employer's email system and other IT resources for non-work-related communications.
  • Employers can lawfully restrict employees' email systems usage as long as employers do not discriminate against union activity or other protected concerted communications.
  • There is an exception for "rare" situations where the employer's email is the only reasonable way for employees to communicate with each other during non-working time in the workday to engage in protected Section 7 communications.
(368 N.L.R.B. No. 143 (Dec. 16, 2019).)
With Caesars Entertainment, the Board overruled Purple Communications, Inc., which held that employees who were provided access to their employer's email system for work-related purposes had a presumptive right to use that email for protected Section 7 communications during non-working time (361 N.L.R.B. 1050 (2014); see Legal Update, Business-Only Email Rules are Presumptively Unlawful, Restrain Employees' New Rights to Use Company Email for Section 7 Activity: NLRB). The Board has returned to the standard established by Guard Publishing Co. (Register Guard), in which the Board held that employees do not have statutory NLRA rights to use their employer's email systems for Section 7 activity and that the Board does not restrict an employer's right to control the use of its email system (351 N.L.R.B. 1110 (2007)).
Member McFerran dissented in part.