On December 17, 2019, the National Labor Relations Board (the “Board”) issued its decision in Caesar’s Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), holding that employers do not violate the National Labor Relations Act (“NLRA”) by restricting the non-business use of its information-technology and electronic mail (“email”) resources. Overruling Purple Communications, 361 NLRB 1050 (2014), the Board reasoned that: (1) employers have the right to control their email systems and technological property, (2) oral solicitation and in-person literature distribution provide adequate means for employees to communicate, and (3) prohibiting non-work use of employer-owned email systems does not unreasonably impede employees’ Section 7 rights.

Background

Rio All-Suites Hotel and Casino (the “Employer”) is owned and operated by Caesar’s Entertainment, Inc. in Las Vegas. The Employer maintains an employee handbook, which was furnished to its approximately 3,000 employees. The employee handbook contains work rules governing employees’ usage of the Employer’s computers and technology systems (“computer usage rules”). The computer usage rules prohibit employees from using the Employer’s computer resources, including work email accounts, to “[s]end chain letter or other forms of non-business information,” “[s]olicit for personal gain or advancement of personal views,” and “visit inappropriate (non-business) websites.” The issue before the Board was whether it was unlawful for the Employer to prohibit employees from using its email and other information-technology resources to engage in activities and communications protected by Section 7 of the NLRA.

In Register Guard, 351 NLRB 1110 (2007), the Board held that employees have no right under the NLRA to use an employer’s equipment, including email systems, for Section 7 purposes. However, in a divided decision in Purple Communications, 361 NLRB 1050 (2014), the Board overruled Register Guard and held that employees have a statutory right to use employer-owned technology for non-work, Section 7 purposes. Thus, under the prevailing Purple Communications standard, the Employer’s computer usage rules would have violated Section 8(a)(1).

Decision and Order

The Board held that employees do not have a right under the NLRA to use employer-owned email for non-business purposes in the typical workplace. The Board reasoned that an employer’s email system and technology resources are its property, which it has the right to control. The Board noted that this well-established principle was not disputed by the majority in Purple Communications. Relying on the Supreme Court’s decision in Republic Aviation Corp. v. NLRB, 324 U.S.793 (1945), the Board further reasoned that, in the typical workplace, oral solicitation and paper literature distribution were sufficient means for employees to communicate and there was no need to abridge an employer’s property rights since employees were not unreasonably prevented from exercising their Section 7 rights. The Board noted that these points were also not disputed by the majority in Purple Communications. However, the Board recognized a narrow exception to its holding, allowing employees to use employer-owned email for Section 7 communications where it is “the only reasonable means for employees to communicate with one another.”

Applying its holding retroactively to the case, the Board found that the Employer did not violate Section 8(a)(1) of the NLRA because its computer usage rules were generally lawful and there was no evidence that the rules had been applied discriminatorily. Chairman John F. Ring was joined by Members Marvin Kaplan and William Emanuel in the majority opinion. Member Lauren McFerran dissented.

Takeaway for Employers:

Employers may now implement and maintain workplace rules prohibiting employees from using their email systems for non-business purposes, including union-related communications. Employers should ensure that these workplace rules are facially neutral and are not applied in a discriminatory manner.

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If you have any questions regarding the Board’s ruling in Caesar’s Entertainment, 368 NLRB No. 143 (2019), please do not hesitate to contact us. We are, of course, available to assist and provide counsel as needed.

Putney, Twombly, Hall & Hirson LLP