US National Labor Relations Board changes course on employee email

In Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, the NLRB rescinded the 2014 Purple Communications restrictions that precluded employers from restricting employee use of employer email systems. In its place, the NLRB reinstated its position that employers may regulate employerprovided equipment, including email, so long as the restrictions are substantively neutral – meaning that if restrictions are imposed, they are imposed across the board and not specifically on union activities or discussions of working conditions.

The NLRB carved out an explicit exception for circumstances in which employer-provided email is the only reasonable means for employees to communicate with one another in non-working time. In that case, employees must be permitted to communicate with one another using employer-provided email.

The Caesars Entertainment holding gives employers more liberty to regulate employee use of email, but employers should tread carefully. A request for reconsideration is pending before the NLRB on grounds that conflict of interest rules should have precluded one member from participating in the Caesars Entertainment decision. In addition, assuming the Caesars Entertainment holding stands, the liberty it affords employers is not limitless. Employers who are tempted to ratchet up regulation should be cognisant that discriminatory application of otherwise neutral policies may still land them in hot water. In addition, employers should consider their legal obligations under other federal laws, including their legal obligations to prevent harassment and discrimination in the workplace.

Please contact Brooks Pierce attorneys Jessi Thaller-Moran and Elizabeth Troutman for assistance in employee matters related to employee communications and speech.

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