NLRB Overturns 2014 Employer Email Rule (Non-Union Employers, This is For You Too)

By: Melissa Tetreau, Bodman PLC

Understandably, employers of a non-unionized workforce often tune out as soon as they hear the words “union” or “National Labor Relations Board.” But many of the NLRB’s decisions apply even to non-union employers – and this is one of them!

In 2014, the Board issued its ruling in Purple Communications, where it held that employees who otherwise have access to the employer’s email system may use that email system for union organizing and union-related purposes on non-working time. As expected, this decision was a nightmare for many employers. At the same time Purple Communications was issued, the Board was doubling down on employer handbooks. Employers (unionized or not) suddenly found their policies limiting email use to “business purposes” to be unlawful. The decision was also a logistical nightmare. If an employee sends a union-related email on his break, and the recipient of the email opens the message during her work time, is that lawful?

But, as we know all too well, the NLRB’s decisions often swing back and forth depending on who is in the White House at the time. So, in 2017, employers finally got a reprieve from unending challenges to their handbooks with the Boeing Co. decision. And recently, the NLRB returned control over email systems to employers in Caesar’s Entertainment.

In this decision, the Union challenged a number of Caesar’s “Computer Usage” rules. One such rule prohibited use of the Company’s computer resources for “chain letters or other forms of non-business information.” The Administrative Law Judge found that under Purple Communications, the restriction on using computer resources for “other forms of non-business information” meant that employees were prohibited from using email for union purposes on their non-working time. She therefore found the rule was presumptively unlawful.

When the decision got to the NLRB for review, the Board recognized that the National Labor Relations Act requires adequate avenues of communication be available for employees to take advantage of their statutory rights. But, the Board went on to say that, “[i]n the typical workplace…, oral solicitation and face-to-face literature distribution provide more than ‘adequate avenues of communication.’” In fact, many employees now have access to personal electronic communication devices, which makes union-related communication even easier. Under these circumstances, the Board found that “employees have adequate avenues of communication that do not infringe on employer property rights in employer-provided equipment.” As a result, it overruled Purple Communications.

Now, under Caesar’s Entertainment, employers do not generally violate the NLRA by restricting the non-business use of its computer resources. However, this assumes that employees have other adequate avenues of communication. For instance, if employees are scattered on a regular basis and cannot engage in face-to-face communication, an employer may be required to permit use of their email system for union purposes. The Board indicated it would look at these situations on a case-by-case basis.

If you are one of the many employers who revised your handbook in 2014 to comply with Purple Communications, it’s time to take another look at your policy. For now, you have the Board’s blessing to restrict use of your electronic equipment to business purposes.

If you have questions about this decision or any other workplace issue, contact an experienced labor and employment attorney, such as the author.

Melissa Tetreau is a member of the Detroit SHRM Legal Affairs Committee and an attorney with the law firm of Bodman PLC.  She can be reached at MTetreau@bodmanlaw.com.                                     

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  February 2020.