NLRB Overrules Purple Communications; No Change Expected By PERB

On December 17, 2019, the National Labor Relations Board (NLRB) overruled its prior decision in Purple Communications, Inc., 361 NLRB 1050 (2014). In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143, the NLRB, according to its press release, “reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis.” Before, under Purple Communications, employees with access to their employer’s email system for work-related purposes had a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act.

In Caesars Entertainment, the NLRB held that, “employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications.” The NLRB created a narrow exception to this rule in situations where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.

Impact on California Public Sector

In Napa Valley CCD (2018) PERB Decision No. 2563-E, the Public Employment Relations Board (PERB) adopted the holding in Purple Communications. However, as I noted in my blog post at the time, PERB took great pains to emphasize that California law provides even stronger support for employee use of an employer’s e-mail system than under federal law. I referred to Napa Valley CCD as a “heightened” version of Purple Communications.

Because PERB grounded the Napa Valley CCD decision on California law, in my opinion the NLRB’s decision in Caesars Entertainment has no immediate impact on the public sector in California. Moreover, I can’t see the current PERB following the NLRB on this issue even if given the opportunity. Accordingly, my advice to California public employers is to continue to abide by Napa Valley CCD.