Bring on the Chain Mail: NLRB Strikes Down Another Facially Neutral Email Use PolicyA National Labor Relations Board (NLRB) judge has struck down Caesar’s Entertainment Corporation’s policy that prohibited employees’ using the company email system to distribute “nonbusiness” information. Why, you ask? According to the judge, the policy infringes on employees’ rights to form a union.

Why does this matter to you if you don’t have a union?

Section 7 of the National Labor Relations Act (NLRA) guarantees all employees (not just those in union shops) “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.” The NLRB reads that last bit broadly to encompass a lot of things, including Facebook likes. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Accordingly, your employees who have never had a union and never even suggested that they wanted one, could file an unfair labor practice charge based on something like a neutral policy in the employee handbook.

Back to this Case

The Caesar’s matter began in September 2011 when employees (or more precisely the International Union of Painters and Allied Trades) filed a complaint claiming that the company’s policy on Use of Company Systems, Equipment, and Resources illegally restricted their rights to engage in protected activity. At the time, the policy provided, among other things, that employees could not use the computer system to commit a crime, violate copyright laws, display anything pornographic, or harass someone. So far, so good. The policy also prohibited the use of the company email to “send chain letters or other forms of non-business information” or to “solicit for personal gain or advancement of personal views.”

An NLRB judge originally ruled in favor of Caesar’s. Relying on the Board’s Register Guard ruling that employees do not have a presumptive right to use an employer’s email system for nonwork purposes, the judge found the policy lawful. Both sides filed exceptions to the decision, and while the case was pending, in December 2014 the Board issued Purple Communications and overruled Register Guard. Under Purple Communications, the Board found that if an employer gives employees access to the email system for work purposes, they can use it for Section 7 purposes, as long as they do so on nonworking time. The Purple Communications decision allowed an employer to show “special circumstances” to justify some restrictions on the email use. The Board remanded the case in light of Purple Communications.

On remand, Caesar’s explained it had issued a new employee handbook providing that (1) employees may not solicit “during working time or the working time of the persons being solicited” and (2) employees could not use the company email system to distribute “non-business information” at any time. The judge did not like the new policy and reversed the original recommendation, finding that because the policy banned all use of the company email system for nonbusiness use, it squarely violated the Purple Communications standard. She further found that the casino did not bear its burden to establish a special circumstance. Caesar’s now needs to change its policy and post a notice of the violation.

So—Now What?

Check your policies. The NLRB is active in this area and making it clear it will go after neutral policies that may chill Section 7 rights. It issued a report last year and everyone should review their policies in light of the report.