Client Alerts & Insights
NLRB Turns Attention to Employer Email Systems
August 7, 2018
Authored By:
After a busy eight months since December of 2017 that saw the National Labor Relations Board (“NLRB”) issue a number of important decisions addressing topics such as joint-employers (rescinded), company policies, micro-units, and others, while also exploring rule-making regarding joint-employers, quickie elections, and blocking charges, the use of employer email systems is next in line for attention.
On August 1, 2018, the NLRB issued a Notice and Invitation to File Briefs regarding whether it should overturn the 2014 Purple Communications (361 NLRB No. 126) decision that allowed workers to use company email for union organizing purposes. The case at issue is Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, 28-CA-060841. In April of 2018, the Ninth Circuit remanded the case back to the NLRB for consideration in light of Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), which revised the NLRB’s evaluation of company policies (see prior alert here). At issue in Caesars is whether the company’s computer usage policy prohibits employees from using the company’s email system to engage in Section 7 communications during nonworking time.
In Purple Communications, the NLRB determined that employees were permitted to use the employer’s email system to engage in concerted protected activities, even if the employer maintained a published policy prohibiting the use of company email for a non-business purpose. The NLRB defined email as the new “natural gathering place” for employees to congregate and the “predominant means of employee-to-employee communication”, i.e., the new “water cooler.” Although the NLRB acknowledged that special circumstances would “make [a] ban [on email] necessary to maintain production and discipline,” it would be rare for circumstances to justify such a ban.
Purple Communications may face a second challenge, as well. An Administrative Law Judge decision issued on May 10, 2017 in Newmark Grubb Knight Frank, No. 28-CA-178893 (2016), is ripe for a decision. In Newmark, an ALJ ruled that the company’s policy that limited employees’ use of the company’s telecommunication and electronic communication resources to “business purposes only” violated the NLRA under Purple Communications. Newmark appealed to the NLRB, asking it “to reverse its decision in Purple Communications and instead to reaffirm, consistent with decades of prior precedent … that employees do not have a statutory right to use their employer’s email systems” for NLRA-protected reasons. Briefing in Newmark was completed in July 2017, so the case is ready for a decision from the NLRB.
For more information on this topic, contact a member of the firm’s Labor & Employment Practice Group.
Eric Baisden at ebaisden@beneschlaw.com or 216.363.4676.
Peter Kirsanow at pkirsanow@beneschlaw.com or 216.363.4481.
Adam Primm at aprimm@beneschlaw.com or 216.363.4451.
Latest News
The Coming State-Law Litigation Wave of 2026-27: “Subscription Trap” Class Actions
The subscription economy keeps growing—and so does the wave of class-action litigation targeting it. While the FTC’s regulatory efforts have drawn headlines, private class actions under state laws pose an even greater exposure risk.
Updates to Fees and Grace Periods for Nonimmigrant Visas
Starting September 9, 2026, the 9-11 Response Biometric Entry-Exit Fee will apply to H-1B and L-1 extension petitions filed by employers subject to the fee. Prior to the new rule, the fee was only required for (1) initial grant of status to a foreign national seeking H-1B or L-1 status and (2) a change of employer in the same status.
Third Circuit Decision Reshapes Creditor Standing in Successor Liability Disputes
The Third Circuit recently held that when determining whether a successor liability claim belongs to a bankruptcy estate, the key question is whether the claim seeks to remedy harm suffered by all creditors collectively or a unique injury suffered by a specific creditor. The fact that creditors may be permitted to bring the claim outside of bankruptcy is not, by itself, determinative.
CMS Proposes Sweeping Restrictions on Remote Patient Monitoring: The Outsourcing Ban, Reimbursement Revaluation and Potential Code Consolidation in the CY 2027 Physician Fee Schedule Proposed Rule
CMS’s CY 2027 Proposed Rule would significantly restrict Medicare reimbursement for Remote Patient Monitoring (RPM) and Remote Therapeutic Monitoring (RTM), including banning outsourced clinical staffing, adding new patient-relationship and initiating-visit requirements, reducing certain reimbursement rates, and exploring consolidation of existing billing codes.