In a decision published on May 27, 2020, the National Labor Relations Board (“NLRB”) affirmed its previous decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB 143 (2019) that an employer does not violate the National Labor Relations Act (“NLRA”) by restricting the non-business use of its email system, including for union activities, with few exceptions. See T-Mobile USA, Inc. and Communications Workers of America, AFL-CIO, 369 NLRB 90 (2020).
The NLRA applies to most private sector employers, but specifically excludes federal, state and local governments, amongst other entities. However, in Ohio, the State Employment Relations Board (“SERB”), while not bound to the NLRB’s decisions, often looks to the NLRB’s interpretations of the NLRA in interpreting R.C. Chapter 4117. See Greater Dayton Reg'l Transit Auth. v. State Emp't Relations Bd., 2015-Ohio-2049, ⁋23 (10th Dist.). Thus, for Ohio employers, this decision could very well have an effect on their own workplace, even if not covered under the NLRA.
In Caesars, the NLRB overturned its previous decision in Purple Communications, 361 NLRB 126 (2014). Under the Purple Communications decision, the NLRB presumed that employees who had access to their employer’s email system in the course of their work had a right to use the email system for Section 7 protected communications about their terms and conditions on non-working time. However, the NLRB overturned this precedent in Caesars and adopted a new standard. Under Caesar, an employer does not violate the NLRA by restricting the non-business use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.
In T-Mobile, an employee sent an email to 595 other employees of T-Mobile encouraging them to join the Communications Workers of America. In response, T-Mobile told the employee that employees could not send nonwork-related emails to other employees’ work email addresses. The employee argued that this rule violated her right to engage in protected concerted activity under Section 7 of the NLRA, and therefore violated Section 8(a)(1) of the NLRA.
The NLRB, applying Caesars, held that T-Mobile did not violate the NLRA. Specifically, the NLRB found that there was no indication in the record that the employees did not have access to other reasonable means of communication.
Thus, the decision in T-Mobile demonstrates that the current NLRB will likely apply the test in Caesar in a straight-forward manner. Furthermore, in this day of social media and smartphones, an employee would have an exceedingly difficult time showing that the employer’s email system is the only reasonable means of communication available. However, employers with similar policies concerning the use of their email systems should ensure that the policy is being applied evenhandedly and prohibits the use of the company’s email system for ALL non-business activities, not just union activities.
Employers with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.
This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.
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