NLRB Rulings Shake Up Previous Standards
On December 16, the National Labor Relations Board (NLRB) issued two decisions which overrule previous standards regarding workplace confidentiality and work email usage for personal communications. We expect employers will see these as welcome changes. Read on for more good cheer.
Apogee Retail LLC d/b/a Unique Thrift Store (Case No. 27-CA-191574)
In the Apogee retail decision issued yesterday, the NLRB examined two written rules disseminated by the employer – one which required employees to “maintain confidentiality” regarding workplace investigations into illegal or unethical behavior and the other prohibiting “unauthorized discussion” of investigations or interviews with other employees. Previous guidance on this issue demanded a case-by-case determination on whether confidentiality could be required for a specific investigation (Banner Estrella Medical Center, 362 NLRB 1108 (2015)). The Banner decision was overruled by the NLRB, and going forward, the Board is adopting the facially neutral test in Boeing Co. (365 NLRB No. 154 (2017)).
This facially neutral test permits investigation-related confidentiality rules if confidentiality obligations apply for the duration of the investigation. To the extent that there is no time limit on the confidentiality provisions, then a case-by-case analysis is required of any post-investigation adverse impact on NLRA-protected conduct. In short, such investigation-related confidentiality provisions should be narrowly tailored to ensure employers can take full advantage of the new ruling.
Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino (Case No. 28-CA-060841)
The issue before the NLRB in this case centered on whether employees were permitted to use email and IT resources for the purpose of engaging in personal activities protected by Section 7 of the NLRA – specifically those activities involving labor organizations, collective bargaining groups, and the like. The NLRB reviewed “decades” of board precedent and came to the conclusion that the precedent of allowing employees to utilize employer-owned equipment for non-work purposes violated the Supreme Court’s view that an employer’s organizational rights are akin to property rights. This decision returns to the standard that “employees have no statutory right” to use employer equipment, including IT resources, for Section 7 purposes. However, the NLRB did carve out an exception for the rare cases where an employer’s email system is the only means for employees to communicate with one another.
It looks like it is time once again to start amending those handbook policies.