On December 17, 2019, the National Labor Relations Board issued two decisions which dramatically overturn a pair of hotly debated Obama-era rules.
The first sets down a rule allowing employers to limit an employee’s use of workplace email to workplace-related subjects – a measure of control which was forbidden to employers under the earlier rule.
The second presents a new standard which allows employers to lawfully ban employees from discussing ongoing workplace investigations – another standard that make eminent sense in today’s “Me Too” environment.
NLRB Strengthens Employer Control Over Company-Owned Email Systems
The first of these game-changing decisions is Caesar’s Entertainment Corp, which overturns the much debated Purple Communications decision, which had limited an employer’s control over its own email system. Caesar’s Entertainment lifts this restriction by allowing employers to prohibit workers from using company-owned email systems for non-work-related purposes, including communications regarding union organization.
Caesar’s Entertainment reverses the controversial 2014 decision Purple Communications, Inc., 361 NLRB No. 126. In Purple, the NLRB declared that an employer may not ban employees from using company-owned email for union organizing activities after-hours unless the employer can show that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights” to use email for union-related purposes. Equating email communications with oral communications, the NLRB reasoned that email use deserves the same special protection against employer interference as employee union organization talk. Purple thus limited an employer’s property right in the email systems it creates and maintains, while fashioning only a frustratingly vague exception for “special circumstances.”