NLRB Overturns Purple Communications, Reinstates Register Guard, And Authorizes Employers To Deny Access To Employer Computer Systems For Non-Business Activity

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Feb 03, 2020

In another December decision overturning an Obama-era decision, the Board, in Caesars Entertainment, held that an employer does not need to provide employees access to their email systems for non-work activities, including those protected by Section 7 of the NLRA.  The Board held that an employer does not violate the Act by restricting employees’ non-business use of its computer systems absent proof that the employees would otherwise be deprived of any reasonable means of communicating with each other.

The decision overrules the Board’s decision in Purple Communications, Inc. (2014) 361 NLRB 1050, which held that employees have a right to use employer-owned equipment for non-work purposes.  The Purple Communications decision relied on an extended long-held Supreme Court precedent, articulated in Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 (Republic Aviation), that permitted face-to-face solicitation and distribution in the workplace.  In Purple Communications, the Board held that email was a “natural gathering place” for employees akin to a breakroom or employee cafeteria, the use of which was governed by the Republic Aviation framework.

In Caesars Entertainment, the Board concluded that the more appropriate standard was articulated in Register Guard (2007) 351 NLRB 1110, which was the first decision in which the Board considered whether employees have a Section 7 right to use employer-provided email systems.  In Register-Guard, the Board analyzed a long line of Board decisions concerning the use of employer-provided equipment before concluding that employees do not have a right to use employer-provided email resources.  Like Purple Communications, the Board in Register-Guard analyzed the potential applicability of the balancing test articulated in Republic Aviation, but reached a different conclusion, holding that employees do not have a right to “the most convenient or the most effective means of conducting those communications.”  The Board limited the Republic Aviation holding to communications “that involves only the employees’ own conduct during non-work-time and do not involve the use of the employer’s equipment.”

The Caesars Entertainment case came as the result of the Las Vegas casino and hotel imposing “computer rules” that restricted its employees’ use of Caesars’ email system to send and receive “non-business information.”  Employees filed a complaint alleging that the casino and hotel’s “computer rules” violated Section 8(a)(1).  In 2015, the Board remanded the “computer rules” portion of the case for further consideration in light of the Purple Communications decision.  In 2016, an ALJ, applying that decision, concluded that the rules were presumptively unlawful.  Caesars then filed exceptions opposing the ALJ’s proposed decision.

Before the Board, the employees argued that Purple Communications appropriately balanced management interests and employee rights.  The employees also argued that the email was central to modern office life and that the employees’ use of the employer’s email system imposed negligible costs on the employer.  Caesars argued that the Board should overrule Purple Communications and reinstate Register-Guard, contending that Purple Communications attached too little weight to the employer’s property interest in their email systems and that enforcing the restrictions was unworkable.  Further, Caesars contended that Purple Communications violated the First Amendment by requiring employers to subsidize hostile speech.

The Board ultimately concluded that employees possess no statutory right to use employer-provided email for non-work purposes, including those protected by Section 7, and because employers possess a property right in their email systems, they are entitled to control the use of such systems as they see fit.  The Board then dismissed the complaint.

Caesars Entm’t d/b/a Rio All-Suites Hotel & Casino & Int’l Union of Painters & Allied Trades, Dist. Council 16, Local 159, Afl-Cio (Dec. 16, 2019) 368 NLRB No. 143.