Ninth Circuit Suspends Proceedings in Email Cases While the Board Considers Whether to Abandon Obama-Era Ruling Permitting Employees to Use Work Email for Concerted Activity

Upon request of the NLRB, on September 25, 2018, the U.S. Court of Appeals for the Ninth Circuit suspended proceedings in two separate labor law cases involving employee use of work email.[1]  The cases involved employer challenges to the NLRB’s employee-friendly decision in Purple Communications,[2] which granted workers the right to use company email for organizing purposes and other concerted activity.  The Board requested that the Ninth Circuit halt its proceedings until the Board rules in Caesars Entertainment[3]– a case that could lead to the reversal of the Purple Communications decision.

In Purple Communications, the Obama Board held that there is a presumption that employers who have chosen to give employees access to their email systems must permit “employee use of email for statutorily protected communications on nonworking time.”  An employer may overcome the presumption and justify a total ban on nonworking time email by demonstrating that the ban is necessary to maintain production and discipline.

In the email case currently before the Board – Caesars Entertainment – the union alleged that the employer – a casino – had violated Section 8(a)(1) of the Act by maintaining a rule that, among other things, prohibited employees from using work email to advance their personal views, and to distribute “non-business information” at any time.

The administrative law judge in Caesars applied the Purple Communications presumption that employees may use work email for concerted activity on nonworking time, and held that the portion of the rule banning such communications was invalid.  The administrative law judge rejected the employer’s argument that the rule was necessary to ensure guest confidentiality. The concerns were only theoretical since the employer had failed to produce evidence of any employee having used email to transmit guest information.  On appeal, the General Counsel’s office urged the Board to abandon Purple Communications and find that workers do not have a legal right to use work email for unionizing and that employers have the power to restrict email use as long as the limitations aren’t discriminatory.  The case is still pending with the Board.

[1]           The cases are Purple Communications v. NLRB, 9th Cir. App., 17-71062, and Cellco Partnership d/b/a Verizon Wireless v. NLRB, 9th Cir. App., 17-71493.

[2]           Purple Communications, 361 NLRB 1050, 201 LRRM (BNA) 1929 (2014).

[3]           Caesars Entertainment Corp., Board Case No. 28-CA-060841.