Thursday, December 19, 2019

NLRB changes course on employee right to use employer's email system for NLRA-protected activity

Folks, you're not gonna believe this . . . the Trump administration NLRB just issued an opinion overturning an Obama administration NLRB decision (which itself had overturned a Bush administration NLRB decision). I'll give you a second to catch your breath and recover from the shock . . .

The new decision is Caesars Entertainment, which overruled Purple Communications, which overruled Register Guard.
Not official use.
The issue before us is whether the National Labor Relations Act requires the [employer] to permit employees to use its email and other information-technology (IT) resources for the purpose of engaging in activities protected by Section 7 of the Act.
The NLRB emphasized that the analysis requires balancing the employer's property rights with the employees' NLRA rights. Purple Communications had established a presumptive right to use an employer's email system for NLRA-protected activities unless it interfered with production or discipline. No surprise, Caesars Entertainment cuts the opposite way:
Accordingly, we shall overrule Purple Communications and return to the standard announced in Register Guard. Under that standard, employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes. However, we shall recognize an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.
I hate to say I told you so . . . but my post on Purple Communications concluded with "And now, the law is settled . . . until at least 2016." But, this time it is really settled . . . until at leas 2020.

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