NLRB Judge Trumps Casino’s Employee Handbook E-Mail Policy
By Ruder Ware Alumni
May 9, 2016
Last week, an administrative law judge for the National Labor Relations Board concluded that Rio All-Suites Hotel and Casino’s (“Rio”) employee handbook policy addressing “Use of Company Systems, Equipment, and Resources,” violated the National Labor Relations Act. The case is Ceasars Entertainment Corporation, No. 28-CA-060841. In Ceasars, the Board ALJ was called upon to review the following handbook policy language that prohibited, among other things, the use of e-mail systems for:
Send[ing] chain letters or other forms of non-business information.
Rio employs both union and non-union employees at its Las Vegas, Nevada location [about half are union represented]. Significantly, Rio granted access to e-mail systems to numerous rank-and-file employees in connection with their jobs. As such, under the Obama Board’s relatively new Purple Communications standard, because Rio gave these employees access to e-mail for work purposes, these employees must be permitted to utilize Rio’s e-mail system for union-related communications and solicitations during nonworking time. The Board ALJ concluded that the above-referenced policy language, “essentially constitutes a ban on all nonbusiness communication via email”—even during nonworking hours. For this reason, the ALJ found that the policy language was illegal.
The typical remedy in a case like this, which was implemented in Ceasars, is a cease and desist order requiring the employer to rescind the offending handbook policy, replace it with something acceptable to the Board, and conspicuously post a notice alerting employees about their rights to form a union [or not form a union] under the National Labor Relations Act.
In light of Ceasars, businesses are encouraged to again reexamine handbook policies governing the use of electronic communications systems. This decision in the most-recent illustration of the government’s hairsplitting in the employee handbook arena, and emphasis on e-mail policies in particular.
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