NLRB Seeks Input Regarding Use Of Employer Email And Other Computer Resources

By Kamer Zucker Abbott

August 7, 2018

On August 1, 2018, the National Labor Relations Board (NLRB or Board) invited interested parties to file briefs on the standard it should apply to evaluating employer policies governing the use of computer resources, such as email. In the pending matter of Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel and Casino, the Board is being asked to overrule Purple Communications, Inc., a 2014 decision which held that employees who have been given access to their employer’s email system for work-related purposes have the presumptive right to use that system during nonworking time to engage in conduct protected by the National Labor Relations Act (such as efforts to organize their coworkers). The Board is being asked to return to its former rule (under Guard Publishing v. NLRB) that permitted employers to impose neutral restrictions on employees’ nonwork-related uses of their email systems. The Board invites the filing of briefs regarding whether it should adhere to, modify or overrule Purple Communications, which standard it should adopt, whether any exceptions to that standard should be adopted, and what standard should be applied to other computer resources.

The Board specifically requests that interested parties consider submitting “empirical evidence, including anecdotes or descriptions of experiences that the Board may find useful in deciding whether to adhere to Purple Communications or adopt another standard.”  We encourage employers who have had experience with these issues to consider submitting a brief to the NLRB. If you have questions about this process or Purple Communications, please contact a KZA attorney.