In Purple Communications, the NLRB ruled that employees who have access to an employer’s email system as part of their job generally may, during non-working time, use the email system to communicate about wages, hours, working conditions and union issues. The NLRB reached this conclusion notwithstanding the fact that Purple Communications has a rule providing that its email system was to be used for “business purposes only.” Specifically, the NLRB ruled that employees with access to company email can use company email systems for union organization and section 7 protected activities, though it did specify certain limitations to its ruling.2

The Purple Communications ruling overturned the NLRB’s 2007 decision in Register Guard, which held that employees have no statutory rights to use their employer’s email systems for labor organization purposes or discussions about wages or other workplace issues.3

In holding that employees generally don’t have the right to use employer equipment such as email and other IT resources for section 7 purposes, the Board in Caesars Entertainment explained that Purple Communications impermissibly discounted employers’ property rights in their IT resources and overstated the importance of those resources to section 7 activity. The Board noted that oral solicitation and distribution of literature at work were effective methods of communication available in the typical workplace. Furthermore, in modern workplaces employees have access to smartphones, personal email accounts and social media, all of which provide additional avenues of communication for section 7-related purposes. As such, a restriction on company email for non-work purposes is not an unreasonable restriction on section 7 rights.

The Board also allowed for an exception to the rule for cases in which an employer’s email system may be the only reasonable means of communication between employees. In that case, an employer’s property rights may be required to yield to ensure employees have adequate avenues of communication. The Board did not define the scope of the exception but stated only that it expected such cases to be rare and they should be considered on a case-by-case basis. For example, in one case, the Board found that an employee did not have the right to use the company’s e-mail system to send a union solicitation message to her coworkers, because the employee could orally communicate with her coworkers during non-work time and had access to smartphones, social media, and personal e-mail accounts during and outside of office hours.4 In another case, the Board found that an employee could use his work email to engage in protected, concerted activity because he had no alternative method of communicating with his colleagues since that they were scattered throughout the United States, in different facilities and time zones.5

Under Caesars Entertainment, which remains in effect as of the date of this publication, employers generally have the right to control the use of their equipment, including IT resources, so long as they don’t discriminate against union or other protected communications. Employers must be mindful of how they craft and enforce their email/IT resources policies. For example, if employers allow employees to use company email to discuss non-work topics (e.g., weekend plans, favorite shows, etc.), then they may not be able to prohibit discussion of union-related matters. Employers should consult with legal counsel concerning their policies and enforcement practices to determine if any changes are required.

1. Caesars Entertainment, 368 NLRB No. 143 (Dec. 16, 2019)