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Board Restores Employers’ Right to Restrict Use of Email

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Washington, DC – In a decision issued today, the National Labor Relations Board reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis. The case is Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143.

The Board last considered the issue presented here in Purple Communications, Inc., 361 NLRB 1050 (2014). There, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act. Overruling Purple Communications, the Board today holds that employees do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications. Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications. To this extent, the Board effectively reinstated the holding of Register Guard, 351 NLRB 1110 (2007). Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the NLRA, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday. 

On August 1, 2018, the Board requested briefing from the public in this case seeking input on whether the Board should adhere to, modify, or overrule Purple Communications. The Board received 19 briefs, which it considered in reaching its decision. 

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented in part.

The decision can be found here.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.