March 6, 2020

NLRB Restores Employers' Right to Restrict Use of Email

by John Sauter, Doll, Jansen & Ford

The National Labor Relations Board (NLRB) is a federal agency that protects the rights of private sector employees to join together to improve wages and working conditions, primarily through enforcement of the National Labor Relations Act (NLRA). Nearly all employees in the private sector are covered by the NLRA.

Under the NLRA, even if not represented by a union, employees are allowed to engage in “concerted activity,” which is when two or more employees take action regarding terms and conditions of employment. For example, employees may lawfully communicate with one another about improving their pay, discuss work-related issues such as safety concerns, or speak to an employer on behalf of co-workers about improving workplace conditions. The NLRA forbids employers from interfering with employees in exercising these rights.

The NLRB, in Purple Communications, Inc. (2014), held that if an employer gave employees access to an email system it must let them use the system on nonworking time to communicate with others for “concerted activities,” such as forming a union or discussing pay or workplace conditions, unless the employer could show special circumstances related to the need to maintain production or discipline. However, in its recent Rio All-Suites Hotel and Casino (2019) decision, the NLRB reversed Purple Communications and held that an employer may bar employees from using their company email for nonworking communications, so long as the company does not discriminate against union or other protected concerted communications. The NRLB did recognize the importance of having an adequate method of engaging in “concerted activities,” thus the Rio decision contains an exception for circumstances where the use of employer email is the only reasonable means for employees to communicate with one another during the workday.

In the modern workplace many employers have adopted email policies designed to curb solicitations for commercial, religious, political or other non-job-related matters. As a result, future cases litigated under Rio will require employers to demonstrate that they applied personal email-use rules in a non-discriminatory fashion when they used those rules to bar employee discussion of union matters over company email.