Companies Can Ban Use of Work Email in Union Organizing (1)

Businesses can ban workers from using company email for union and other organizing purposes, the National Labor Relations Board decided in a Dec. 17 decision.

The 3-1 ruling in favor of Caesars Entertainment effectively revokes a right granted in 2014 to workers who have access to employers’ email systems for other reasons, and overturns the 5-year-old Purple Communications Inc. ruling issued under a Democratic-majority board.

The Board’s decision allows employers to restrict use of their email and other information technology systems to certain purposes so long as they don’t target union-related communications and activity. It also creates an exception for situations where there aren’t other reasonable means to communicate on non-working time.

The decision is a blow to worker advocacy groups and unions, who urged the NLRB to maintain the 2014 policy on the basis that email has become a central and natural way for co-workers to organize and communicate. The policy reversal also marks another step in the Republican-majority NLRB’s push to reinterpret the central federal law on unions in ways that advocates say have made it easier for companies to avoid a unionized workforce.

The NLRB agreed with Caesars, the U.S. Chamber of Commerce, and other business groups, which had argued that employers have property and First Amendment rights to limit the use of their own email systems. Requiring access to email networks also could cause workplace disruption and increase cybersecurity threats, businesses have said.

Employees “do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications,” the Board said in a Dec. 17 announcement.

“Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate” against union-related communications.

Democratic NLRB Member Lauren McFerran dissented in part from the opinion, saying her colleagues “undervalued employees” rights under labor law, and are aiming “to turn back the clock” by reversing a decision meant to adapt the law to the changing patterns of the work environment.

McFerran’s term ended Dec. 16.

New Problems?

David Rosenfeld, a labor attorney at Weinberg, Roger & Rosenfeld, PC, told Bloomberg Law Dec. 17 that he’s not surprised by the decision, given the Board’s pro-employer rulings in other recent cases.

Rosenfeld represented the union in case.

“I think the ruling could also create a bigger problem for the Board and for employers,” Rosenfeld said. “No modern employer who restricts email access enforces that strictly. There will always be managers and others sending emails home saying ‘I’m about to leave the office,’ so how do you enforce a policy like that in a non-discriminatory way?”

Representatives of Caesars weren’t immediately available for comment.

The Board’s ruling overturns the earlier Purple Communications decision that caused many employers to rewrite their employee rules handbooks.

In that 2014 decision, the NLRB said if an employer provides workers access to an email system for work functions, then there is a presumption that employees have a right to use that system to discuss union activity or other work-related concerns. Businesses could ban all nonwork use of email, as opposed to a specific prohibition on union-related uses, if they could demonstrate special circumstances justified a total ban.

McFerran said in her dissent that a court should overturn the Republican majority’s Dec. 17 ruling because it doesn’t adequately explain why the agency is reversing itself, and misinterprets its own and U.S. Supreme Court precedents in this area.

Emanuel Rejects Recusal Request

The Service Employees International Union and other major unions have also argued that a policy allowing employers leeway to restrict access for union-related purposes would create risk for workers who may not be aware that certain of their communications would violate the law.

The NLRB asked for public input on the issue in August 2018.

Democratic politicians and unions subsequently called for member William Emanuel to recuse himself from the case because of a purported conflict of interest.

Emanuel ultimately “determined not to recuse himself” after consulting with the agency’s ethics officials, according to the opinion. The NLRB recently announced a new policy under which members can disagree with the ethics officers over a recusal matter and independently decide to participate in a case.

The case is Caesars Entertainment Inc., N.L.R.B., Case 28-CA-060841, decision 12/17/19.