NLRB Seeks Comment on Employer Email Policies

August 7, 2018

The National Labor Relations Board (NLRB) is inviting amici briefs in the case Caesars Entertainment Corporation on whether it should maintain or modify its employer email rule established during the Obama Administration in Purple Communications.

The NLRB announced a presumption in Purple that “employees who have been given access to the employer’s email system in the course of their work are entitled to engage in statutorily protected [National Labor Relations Act] Section 7 discussions while on nonworking time.”

NLRA Section 7 states, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . .”

An employer can rebut the presumption “by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.”

Importantly, the standard articulated by the NLRB in Purple does not apply to employer regulation of email usage during work hours, and it does not mandate that employers provide an email account to all employees.

The NLRB is also seeking comment on appropriate policies for use of other employer-owned computer equipment and resources beyond email in Caesars Entertainment Corporation.