The NLRB reversed the controversial holding in Purple Communications, which allowed employees to use their employer's e-mail system during non-working hours to engage in Section 7 protected discussions regarding wages, hours of work, working conditions, union issues and other terms and conditions of employment. In Purple Communications, the NLRB overturned precedent that held that while union-related communications cannot be banned because they are union-related, facially neutral policies regarding the permissible uses of employers' e-mail systems are not rendered unlawful simply because they have an incidental effect of limiting the use of those computer systems for union-related communication.

Given the significant backlash over the new rule, the NLRB invited and received dozens of briefs on whether or not the NLRB should adhere to, modify or overrule Purple Communications. On December 17, a split NLRB issued its decision in Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, which formally overturned Purple Communications. The majority emphatically found that “employees have no statutory right to use employer equipment, including IT resources for Section 7 purposes.” The only exception to that rule is if company e-mail is “the only reasonable means for employees to communicate with one another.”

In light of the decision, employers should review their e-mail and technology policies and determine whether they are able to re-tighten the prohibition on employee use of the employer's technology.