NLRB Decides That Employers May Restrict Employee Use of Email Systems When Other Adequate Means Exist to Communicate

In T-Mobile USA, Inc. and Communications Workers of America, AFL–CIO (May 27, 2020), the NLRB recently held that the employer did not violate the law when it announced new workplace rules that employees could not send certain emails to other employees’ work email addresses. In T-Mobile, an employee attempted to use her work email to send a message to her 595 coworkers encouraging them to join the Communications Workers of America union. The Board cited its recent decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143, slip op. at 8–9 (2019) which overruled Purple Communications, Inc., 361 NLRB 1050 (2014), and announced a new standard that applies retroactively to all pending cases.

The Caesars Entertainment standard states, in relevant part, that “an employer does not violate the Act by restricting the nonbusiness 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.” Under this limited exception, employees are permitted to access their employer’s IT resources for nonbusiness use, even absent discrimination, where the employees would otherwise be deprived of any reasonable means of communication with each other.

In T-Mobile, however, the Board held that the employee did not have a right to use her work email to send her message to her coworkers because the employees already had adequate and effective means of communicating with each other without the use of the employer’s email system, including oral solicitation during nonworking time, distribution of union literature in nonwork areas during nonworking time, and access to smartphones, social media, and personal email accounts. Consequently, the employer was entitled to exercise its property rights to restrict the employee’s se of its email system for that purpose.

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