The National Labor Relations Board (“NLRB”) recently issued a pair of decisions rolling back Obama-era rulings that were unfavorable to employers. These decisions apply to employers whether they have a union or not.
In Apogee Retail LLC, 368 NLRB No. 144 (Decision and Order Remanding, December 16, 2019), the NLRB overruled Banner Estrella Medical Center, a 2015 case that had held that an employer’s general policies requiring confidentiality from witnesses during workplace investigations was unlawful because they might deter employees from exercising their rights under the National Labor Relations Act (“NLRA”). The Banner Estrella case required that employers make a case-by-case determination as to whether the need for confidentiality in an investigation outweighed the employees’ rights under the NLRA. In Apogee, the NLRB held that rules requiring confidentiality during an ongoing investigation were lawful. The Board stated: “a rule that merely requires employees not to disclose what they say or hear during an investigative interview concerning an incident leaves employees free to discuss the incident itself.” The Board held that such rules do not prohibit individuals from making complaints to the NLRB.
Rules applying more broadly to investigations, even after they are complete, must be reviewed on a case-by-case basis to determine whether the rule is supported by justifications that outweigh the adverse impact it may have on employees’ ability to exercise their NLRA rights, and are not otherwise unlawful.
The NLRB also recently held that employers may prohibit employees from using email for nonwork purposes. In Caesars Entertainment, 368 NLRB No. 143 (Decision and Order, December 16, 2019), the NLRB overruled its 2014 decision in Purple Communications, Inc. Purple Communications had held that employers could not stop employees who had access to company email as part of their jobs from using the email to communicate with a union or with coworkers about unions or about terms and conditions of employment. In Caesars, the NLRB now has held that employers can have rules prohibiting employees from using email and other company-owned computer resources for nonwork purposes, which would include barring use for purposes of promoting unions. The decision in Caesars marks a return to the NLRB’s former standard that employees did not have a right under the NLRA to use employer equipment, including IT resources, in the exercise of their rights under the NLRA. The NLRB in Caesars did carve out an exception to this standard for rare cases where the employer’s email system is the only reasonable means for the employees to communicate with each other concerning issues involving their right to engage in protected, concerted activity under the NLRA.
What Does This Mean For You? Previous NLRA decisions sent employers scrambling to update handbooks with provisions that would be found lawful under the new standards they provided. Now the requirements in the above areas have been relaxed, and employers may want to revisit changes previously made to handbooks, or to review unchanged handbooks to ensure they comply with these standards. In doing so, employers still must be mindful of provisions that are broader than these new standards, and not to have any provisions that specifically single out unions, which would be unlawful under any standard. Keep in mind also that the NLRB could again reverse itself if the composition of the NLRB shifts in the future.
**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist,
or as lobbying of any sort for or against any
National Labor Relations Board rules or decisions.**