NLRB Turns Attention to Employer Email Systems

Authors: Adam Primm and Peter Kirsanow

After a busy eight months since December of 2017 that saw the National Labor Relations Board (“NLRB”) issue a number of important decisions addressing topics such as joint-employers (rescinded), company policies, micro-units, and others, while also exploring rule-making regarding joint-employers, quickie elections, and blocking charges, the use of employer email systems is next in line for attention.

On August 1, 2018, the NLRB issued a Notice and Invitation to File Briefs regarding whether it should overturn the 2014 Purple Communications (361 NLRB No. 126) decision that allowed workers to use company email for union organizing purposes. The case at issue is Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, 28-CA-060841. In April of 2018, the Ninth Circuit remanded the case back to the NLRB for consideration in light of Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), which revised the NLRB’s evaluation of company policies (see prior alert here). At issue in Caesars is whether the company’s computer usage policy prohibits employees from using the company’s email system to engage in Section 7 communications during nonworking time.

In Purple Communications, the NLRB determined that employees were permitted to use the employer’s email system to engage in concerted protected activities, even if the employer maintained a published policy prohibiting the use of company email for a non-business purpose. The NLRB defined email as the new “natural gathering place” for employees to congregate and the “predominant means of employee-to-employee communication”, i.e., the new “water cooler.” Although the NLRB acknowledged that special circumstances would “make [a] ban [on email] necessary to maintain production and discipline,” it would be rare for circumstances to justify such a ban.

Purple Communications may face a second challenge, as well. An Administrative Law Judge decision issued on May 10, 2017 in Newmark Grubb Knight Frank, No. 28-CA-178893 (2016), is ripe for a decision. In Newmark, an ALJ ruled that the company’s policy that limited employees’ use of the company’s telecommunication and electronic communication resources to “business purposes only” violated the NLRA under Purple Communications. Newmark appealed to the NLRB, asking it “to reverse its decision in Purple Communications and instead to reaffirm, consistent with decades of prior precedent … that employees do not have a statutory right to use their employer’s email systems” for NLRA-protected reasons. Briefing in Newmark was completed in July 2017, so the case is ready for a decision from the NLRB.

For more information on this topic, contact a member of the firm’s Labor & Employment Practice Group.

Eric Baisden at ebaisden@beneschlaw.com or 216.363.4676.

Peter Kirsanow at pkirsanow@beneschlaw.com or 216.363.4481.

Adam Primm at aprimm@beneschlaw.com or 216.363.4451.

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