Email marketing and many envelopes in smartphone screen

The issue of whether an employer can ban its employees from using the company email system for union organizing has been the subject of heated litigation before the National Labor Relations Board (NLRB or Board). Since its 2007 decision in Register Guard, 351 NLRB 1110, the Board has vacillated between finding that such bans unlawfully infringe upon employees’ right to engage in protected concerted activity (Purple Communications, Inc., 361 NLRB 1050 (2014)) and upholding such restrictions as protecting employers’ property rights (Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019)). In the most recent case, T-Mobile USA, Inc. & Communications Workers of America, NLRB, 14-CA-155249 (Sept. 30, 2022), a three-member NLRB panel – made up of the Board’s two Republicans and one of the Board’s three Democrats – found that T-Mobile unlawfully disciplined an employee when it (1) selectively and disparately enforced its email policy against an employee for sending a union-related email, (2) established rules prohibiting mass emails for nonbusiness purposes in response to the employee’s union activity, and (3) told the employee that employees could not send union-related emails to work addresses.

Although the Board found that T-Mobile committed an unfair labor practice, the Republican majority recognized that under Caesars Entertainment, an employer can lawfully restrict employees’ use of the company’s email system, including for union purposes, as long as the restriction is not enforced in a discriminatory fashion. According to the Board, that was where T-Mobile fell short. Notably, the Caesars Entertainment decision was not challenged in this case; however, the Democratic member of the panel, David Prouty, urged the Board to overturn the Caesars Entertainment standard.

TAKEAWAY: For now, employers that wish to implement policies prohibiting employees from sending emails for non-work issues, including union organizing, may do so provided they do not enforce the policy in a discriminatory manner. For example, an employer that ignores the policy when an employee sends a mass email to co-workers about their child’s school fundraiser but enforces the policy when another employee sends a mass email to co-workers encouraging them to unionize likely will find itself in hot water. Likewise, an employer that promulgates such a rule in response to an employee’s mass email encouraging co-workers to unionize will probably end up in a tight spot. To avoid liability, employers should ensure that their email policies are written and distributed to employees and subsequently enforced in a uniform and consistent manner. Given the current makeup of the Board, employers should watch for future cases that may overturn Caesars Entertainment and change the landscape on email use.