NLRB Counsel Supports Employer's Right to Prohibit Union Organizing Emails on Company Equipment

The National Labor Relations Board has ruled on many occasions in the past that employees have no statutory right to use an employer's equipment or media as long as the employer's restrictions are non-discriminatory.  Thus, an employer may place non-discriminatory restrictions on the use of its equipment for business purposes, such as bulletin boards, copying machines and the like.  During the Obama Administration, the NLRB issued a ruling in which it overturned its previous doctrine, with two members dissenting, and ruled that employees having a right of access to the employer's email system in the course of their work also have the right to use the email system to engage in union and other protected communications on non-working time.  In addition to the negative effect on productivity, employers argued that this reversal of a long-standing policy was wrong.

In a brief filed in a pending NLRB case by the NLRB General Counsel in September, the NLRB's top prosecutor argued that the NLRB should abandon its Obama-era rule that allows workers to use their employer's email systems to discuss unionization.  The General Counsel wrote that employers should be able to restrict email use in a non-discriminatory way.  It stated that the NLRB is a government entity and should not be able to force employers to pay for speech on their email systems that they might oppose, raising First Amendment concerns.  The NLRB General Counsel is thus supporting the long-standing view of business groups that the Obama-era decision wrongly took away employer control over their own email systems.  In a related development, the NLRB has invited public input on a similar case involving email rules in a case called Caesars Entertainment Corp.