Category Archives: NLRB


By Attorney Kristofor Hanson

In its August 25, 2023, decision, the National Labor Relations Board (“NLRB” or “Board”) paved the way for a union to represent employees without a formal vote. Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130.

The case involved Cemex, a multinational construction materials company, and the Teamsters, who were seeking to organize a bargaining unit consisting of Cemex’s ready-mix drivers. A majority of Cemex’s ready-mix drivers signed authorization cards signaling their desire for the Teamsters to serve as their bargaining representative. The Teamsters then petitioned for a Board election. According to the Board, in the lead up to the vote, Cemex management engaged in multiple unfair labor practices (ULP), including discharging a driver for union activity, and threatening job losses, wage freezes, reduced benefits and other reprisals if the union was successful in its efforts. The Board held the election and the Teamsters lost, 179-166.

Historically, unfair labor practices like that occur during an organizing campaign unless particularly severe, would result in a second election, if the union had lost the first. Under Cemex, however, the Board held that if an employer commits unfair labor practices during a campaign significant enough to require the setting aside of an election, the Board will issue a bargaining order rather than a second election.

In addition, the Board held that when a union collects authorization cards from a majority of employees in an appropriate bargaining unit, unless the employer promptly files an election petition with the Board, the Board will issue a bargaining order. According to the Board, “promptly” means within two weeks, unless extenuating circumstances are present.

Therefore, if a union presents an employer with proof that a majority of employees have signed cards, unions can request that the employer begin bargaining. If the employer refuses for more than two weeks and has not filed for an election, the union can file a ULP charge with the Board, and the Board will order the employer to bargain.

However, if an employer who petitioned for an election violates federal labor law in a way that would require setting aside the election, the petition will be dismissed, and the NLRB will order the employer to recognize and bargain with the union. This is a significant change from precedent, which allowed employers to refuse to accept evidence of majority support of a union and required that the union petition for a representation election.

The Board stated, “[t]he Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment….” The Board also stated that an employer has the right to challenge a union’s claimed majority via the election process but is not allowed to abuse that process.

Employers presented with authorization cards by a union should immediately confer with labor counsel and petition for a representation election. Employers may then make lawful efforts to combat unionization in the lead up to the election. Failing to petition for an election will now guarantee that the union will represent at least a segment of the employees of your business.

Should you have questions concerning this or other labor matters, please contact our office.


By: Kristofor L. Hanson and Alexandra (Sasha) Chepov

On August 2, 2023, the National Labor Relations Board adopted a new standard for analyzing the legality of facially neutral work rules that do not expressly restrict employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”). In Stericycle Inc., 372 NLRB No. 113, the Board overruled the legal framework established by the Board in Boeing Co., 365 NLRB No. 154 (2017), later clarified in LA Specialty Produce Co., 368 NLRB No. 93 (2019). In doing so, the Board adopted a standard by which the legality of a facially neutral work rule is determined by assessing whether the rule has a reasonable tendency to chill employees from exercising their Section 7 rights.

Section 7 of the NLRA states generally that employees have the right to unionize and to join together to advance their interests as employees. It also makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights.

The Boeing standard required the Board to evaluate two key factors when assessing the legality of facially neutral work rules maintained by employers:  1) the nature and extent of the potential impact on employees’ NLRA rights, and 2) the employers’ legitimate justifications associated with the work rule. The Boeing standard allowed the Board and administrative law judges to deem a work rule lawful simply because the employer had legitimate business justifications for implementing it.

In addition to this standard, the Boeing majority created a categorical classification system to provide greater clarity and certainty when evaluating the legality of work rules under the Boeing standard. Under this system, a facially neutral work rule would fall in one of three categories. Category 1 of the Boeing categorical classification system was designated for rules that did not interfere with employees’ Section 7 rights or where the adverse impacts on Section 7 rights were outweighed by justifications associated with such rules. Facially neutral work rules in Category 1 were always lawful for employers to maintain. Work rules that were sometimes lawful to maintain, but which warrant scrutiny in each case, fell in Category 2. Lastly, work rules that fell in Category 3 were always unlawful to maintain given that their impact on protected activity could never be justified by an employer.

In Stericycle Inc., the Board recognized that the Boeing standard appropriately recognized that employer interests should factor into the Board’s analysis, but criticized the interpretive principles adopted in Boeing as giving too little weight to employees’ Section 7 rights and too much weight to employer interests in that it permitted employers to adopt overbroad work rules that chilled employees’ exercise of their Section 7 rights.

To remedy this, the Board adopted a new standard that requires the General Counsel to prove a challenged rule has a reasonable tendency to chill employees exercise of their Section 7 rights. Under the Stericycle Inc. standard, the General Counsel will meet her burden if an employee could reasonably interpret the rule to have a coercive meaning, even if a contrary noncoercive interpretation of the rule is also reasonable.  If the General Counsel carries her burden, the employer’s work rule is deemed presumptively unlawful. An employer then has an opportunity to rebut the presumption by proving that the rule advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.

Notably, the Board’s decision states that under the Stericycle Inc. standard, facially neutral work rules will be interpreted from the perspective of an employee who is subject to the rule and economically dependent on the employer and who also contemplates engaging in protected concerted activity. As a result, the employer’s interest in maintaining a work rule is immaterial to the determination of whether the rule is lawful.

In support of its departure from the Boeing standard, the Board clarified that the new standard still provides employers the necessary leeway to maintain rules of their own choosing to advance legitimate and substantial business interests. However, these rules must be narrowly tailored to significantly minimize, if not altogether eliminate, their coercive potential. If employers do so, their rules will be lawful to maintain.

As the Board’s decision in Stericycle Inc. applies to virtually all private-sector employers, regardless of whether their workplace is unionized, employers along with labor counsel should review and revise employer handbooks and policies to ensure that they are narrowly tailored and in compliance with the new standard established by the Board.

If you have any questions about this material, please contact Kristofor Hanson by email at or Alexandra (Sasha) Chepov at, or any other attorney you have been working with at Lindner & Marsack, S.C.

New misconduct standard set by NLRB gives employees significant leeway in tone of communications with management

By Kristofor L. Hanson

On May 1, 2023, the National Labor Relations Board returned to its prior standard for analyzing the legality of disciplining employee misconduct related to protected concerted activity. In Lion Elastomers LLC II, 372 NLRB No. 83, the Board overruled its decision in General Motors, 369 NLRB No. 127 (2020) and reverted to its pre-2020 standard for determining whether an employer may lawfully discipline employees whose actions and/or words cross the line into abusive conduct. General Motors applied the three-part Wright Line standard — under which the employer can lawfully discipline an employee if it can show it would have taken the same action absent the employee’s protected activity — in all abusive conduct circumstances. For employers, that standard lasted just three years and with its decision in Lion Elastomers LLC II, the Board will once again apply one of three different standards, depending on whether the conduct involves: 1) communication to management; 2) communication in social media posts or in conversations among employees; or, 3) picket-line conduct. As a result, employers must evaluate different standards in determining whether it can lawfully impose discipline based on the context in which the misconduct occurred.

This decision returns employers to an environment where offensive or abusive actions that go beyond the bounds of proper workplace conduct will be considered lawful in most instances if the conduct arguably occurs in the context of exercising protected activity (grievance meetings, collective bargaining, intra-employee communications, social media discussions about the employer, etc.). The decision also engenders workplace environments that lack professionalism among workers and places employers in the difficult position of risking unfair labor practice charges for disciplining unruly behavior or allowing such behavior and creating an atmosphere where such behavior is condoned.

As a result, employers must be cautious when disciplining employees who engage in behavior that they deem unprofessional or disrespectful. Therefore, employers would be wise to consult with labor counsel before taking any disciplinary action under such circumstances.

NLRB Says that Non-Compete Agreements Should Be Deemed Unlawful

By Kristofor L. Hanson

Continuing a very aggressive employee- and union-friendly agenda, on May 30, 2023, NLRB General Counsel Jennifer Abruzzo sent a memo, GC 23-08, to all Regional Directors, Officers-in-Charge, and Resident Officers, setting forth her view that the offer, maintenance, and enforcement of non-compete provisions in employment contracts and severance agreements violate the National Labor Relations Act (NLRA) except in limited circumstances.

Though overbroad non-compete agreements are generally viewed as unlawful and subject to invalidation, the GC memo explains that within the context of the NLRA, overbroad non-compete agreements are unlawful because they chill employees from exercising their rights under Section 7 of the National Labor Relations Act. Section 7 protects employees’ rights to take collective action and engage in protected activity to improve their working conditions. Specifically, the memo explains that such agreements interfere with employees’ ability to:

  1. concertedly threaten to resign to secure better working conditions;
  2. carry out concerted threats to resign or otherwise concertedly resign to secure improved working conditions;
  3. concertedly seek or accept employment with a local competitor to obtain better working conditions;
  4. solicit their co-workers to go work for a local competitor as part of a broader course of protected concerted activity;
  5. seek employment, at least in part, to specifically engage in protected activity, including union organizing, with other workers at an employer’s workplace.

“Non-compete provisions reasonably tend to chill employees in the exercise of Section 7 rights when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work,” said General Counsel Abruzzo. “This denial of access to employment opportunities interferes with workers engaging in Section 7 activity in a number of ways—for example, workers know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; their bargaining power is undermined in the context of lockouts, strikes and other labor disputes; and their social ties and solidarity leading to improvements in working conditions at workplaces are lost as they scatter to the four winds.”

The memo preserves limited circumstances pursuant to which non-compete agreements could be lawful if the provisions clearly restrict only individuals’ managerial or ownership interests in a competing business, or true independent-contractor relationships. Moreover, there may be circumstances in which a narrowly tailored non-compete agreement’s infringement on employee rights may be justified by special circumstances.

Although General Counsel memos are not binding on employers, they reflect the Board’s prosecutorial intent. Accordingly, all NLRB regional offices are required by the GC to submit cases concerning “arguably unlawful” non-compete agreements, as well as special circumstances defenses, to the NLRB’s Division of Advice. The memo directs NLRB regions to seek make-whole relief for employees subject to unlawful provisions who can show lost employment opportunities as a result of such provisions. Once complaints issue, the GC will seek to convince the members of the NLRB to adopt her theory that such provisions violate the Act.

Employers, whether unionized or not, should consult with experienced labor counsel to thoroughly assess non-compete and non-solicitation agreements and severance agreements in light of Section 7 and the GC’s memo.


February 23, 2023

By: Alexandra (Sasha) Chepov and Oyvind Wistrom

The National Labor Relations Board (NLRB) issued a landmark decision on Tuesday affecting the validity of various provisions typically found in employee severance agreements.  The NLRB in McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023) ruled that an employer violates Section 8(a)(1) of the National Labor Relations Act (NLRA) if a severance agreement contains a non-disparagement or confidentiality clause that restricts an employee’s ability to exercise their rights under the NLRA.  The NLRB’s decision in McLaren Macomb not only restricts that which an employer can include or offer an employee in future severance agreements, but calls into question the validity of past agreements.

Prior to the NLRB’s decision in McLaren Macomb, severance agreements containing non-disparagement and/or confidentiality provisions were generally deemed lawful under the NLRA so long as the employer did not commit a separate Unfair Labor Practice (ULP) by discriminating against their employees by implementing such an agreement against the backdrop of union organizing or other protected activity.  However, in McLaren Macomb, the NLRB abandoned this practice and revived an old standard by which severance agreements will be assessed going forward.

After an employer offered its permanently furloughed employees severance agreements that contained a non-disparagement and confidentiality clauses, eleven bargaining unit employees filed ULP charges on the basis that these clauses violated the NLRA.  Notably, the non-disparagement clause at issue prohibited these employees from making statements that could disparage or harm the image of the company, its parent, affiliated entities and their officers, directors, agents, and representatives.  Further, the severance agreement prohibited these employees from disclosing the terms of the agreement to any third person.

In deciding the issue, the NLRB held that the standard non-disparagement and confidentiality clauses in the severance agreements were unlawful due to the broad scope of the provisions and the effect that the provisions had on the employees’ ability to exercise their rights under the NLRA.  Specifically, the NLRB held that such clauses tend to chill the exercise of an employee’s Section 7 rights to collectively band together in an effort to improve the workplace, and therefore such clauses violated Section 8(a)(1) of the NLRA.

The NLRB’s decision in McLaren Macomb, marks a stark departure from the standard employed by the Trump-Era NLRB, and the decision applies to both the enforcement of fully-executed severance agreements that contain such clauses, and agreements that are merely offered to employees.

Although not explicitly addressed by the NLRB, a well-crafted disclaimer may protect such agreements from running afoul of the NLRB’s decision.  However, such disclaimers must unequivocally allow employees to participate in Section 7 activities, file or assist others in filing ULP charges, and to otherwise cooperate with the NLRB’s investigative process.  It is possible that this ruling will be followed by a General Counsel Advisory Memo in the coming months offering more concrete examples of lawful severance covenants.

As the NLRB’s holding in McLaren Macomb applies to virtually all private-sector employers, regardless of whether their workplace is unionized, employers should review and revise their severance agreements to ensure they are in compliance with the new standard established by the Board.

If you have questions about this material, please contact Alexandra (Sasha) Chepov by email at or Oyvind Wistrom at, or any other attorney you have been working with here at Lindner & Marsack, S.C.


Continuation of Dues Checkoff Now Considered Status Quo by Divided NLRB

By: Kristofor L. Hanson

In a 3-2 ruling by the five-member National Labor Relations Board, employers must now continue to deduct union dues – otherwise known as dues checkoff – from workers’ paychecks even after collective bargaining agreements containing such provisions expire. Valley Hospital Medical Center, Inc., N.L.R.B., Case 28-CA-213783 (Sept. 30, 2022). This ruling represents a return to the standard of the Board under President Obama after just three years during which dues checkoff could be discontinued in the event of contract expiration.

The Board relied on precedent that states that employers and unions must maintain the “status quo” when a CBA expires, and found that there has been no cogent explanation by the Board or courts as to why that did not apply to dues checkoff.  The Board stated that its decision “definitively resolves this issue by confirming that it is a violation of the Act to unilaterally stop dues checkoff when a contract expires.”

The decision is clearly favorable to unions as they have become increasingly concerned with their ability to continue dues collection once a contract expires, a vital conduit for union revenue. This decision likewise ends the availability of this economic weapon for employers in the face of labor strife.

Employers must now maintain dues checkoff along with wages, benefits, and other terms and conditions of workers’ employment upon the expiration of a collective bargaining agreement. This was an objective of Board General Counsel Jennifer Abruzzo once her nomination was approved by Congress.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent ruling by the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.


September 7, 2022

By: David Keating

On September 6, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking as to the legal standard for determining joint-employer status under the National Labor Relations Act (NLRA).

Under the current analysis of joint-employer status established by the NLRB during the Trump administration in 2020, a company must exercise “substantial direct and immediate control” over essential terms and conditions of employment to be considered the employer of another company’s employees.  “Substantial direct and immediate control” is defined as “direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment of another employer’s employees.”  The NLRB further stated that indirect control or contractually-reserved control that is not exercised would not establish a joint employer relationship.

By contrast, the proposed rule lessens the standard by which joint employment will be established. Employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.”  The proposed rule would define “share and codetermine” to mean “for an employer to possess the authority to control (whether directly, indirectly, or both), or to exercise the power to control (whether directly, indirectly, or both), one or more of the employees’ essential terms and conditions of employment.”  Further, the proposal states that “possessing the authority to control is sufficient to establish status as a joint employer, regardless of whether control is exercised.”

The proposed rule expands upon what will be deemed an “essential term and condition of employment.” Under the 2020 rule’s exhaustive list, wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction are essential terms and conditions.  The proposed rule adds certain terms and conditions such as “control over workplace health and safety” and “rules and directions governing the manner, means, and methods of work performance.” The proposed rule indicates that the list is not exhaustive and requires “flexibility” in the future.

If adopted, the impact of the proposed rule on employers that utilize or provide sourced labor will likely be dramatic. More workers will be deemed joint employees of two legally separate entities.

The NLRA provides that joint employers have a duty to bargain with a union and are both subject to unfair labor practice charges and potential liability.

The NLRB will accept public comment on the proposed rulemaking before finalizing the rule on or before November 7, 2022.  A reply to those comments received during the initial comment period must be received by the NLRB on or before November 21, 2022.  We will monitor this matter closely.

A copy of the Notice can be found here.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent proposed rule by the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.


NLRB General Counsel Announces Challenge to Employer Rights During Union Organizing Campaigns

By: Kristofor Hanson

In a new memorandum published today, National Labor Relations Board (the “Board”) General Counsel, Jennifer Abruzzo, stated aloud what many had thought would be a goal of the newly appointed chief lawyer for the agency, challenging an employer’s ability to require employees to attend meetings during a union organizing campaign.

In so doing, Abruzzo has asked the Board to reconsider its precedent and find that mandatory meetings – often referred to as “captive audience” meetings – are unlawful. The General Counsel has taken the position that such meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.” The protected rights to which she refers are those rights granted to workers under Section 7 of the National Labor Relations Act (the “Act”). Those rights include “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 rights also include the right of a worker to “refrain from any or all such activities.”

The precedent the General Counsel asks the Board to reconsider dates to 1948 in Babcock & Wilcox Co., 77 NLRB 577 (1948), when the Board found that employers are entitled to require employees, during their work hours, to attend meetings to discuss issues related to a union organizing campaign. Under the Act, Employers are allowed to present factual information to employees during such meetings. They are not, however, allowed to make promises or threaten employees. Accordingly, the Act already places limitations on employers regarding what can be presented during captive audience meetings.

Nevertheless, the General Counsel has taken the position that requiring employees to attend meetings during their working hours crosses a line into the area of coercion and “plainly chills employees’ protected right to refrain from listening to this speech in violation of [the Act].”

Therefore, Abruzzo has asked the Board to revisit this issue and allow employees to refrain from attending any meeting where union organizing will be discussed on paid time and any discussion in which an employee “is cornered by management while performing their job duties.”

The General Counsel contends that imposing these protections will not impair employers’ rights to freedom of expression. However, she does not provide any insight into the mechanisms employers may use to get their message out to employees during an organizing campaign. Those mechanisms will likely be left to meetings on paid time, attendance at which will be entirely voluntary, as well as postings and mailings that have been traditionally used during organizing campaigns.

This request by the General Counsel will likely be met favorably by the Board should it hear a case concerning this issue, as the current Board is comprised of a majority of union-friendly members. The Board may soon hear such a case as complaints on this subject were filed during the recent, failed union organizing campaign at an Amazon facility in Alabama. Should the Board reach a decision on such a case, we will promptly update you with details.

In the meantime, captive audience meetings are still allowed and are an effective way for an employer to get its message out during a union organizing campaign. In these meetings, employers should direct their communications to facts, opinions, and experience with unions, but avoid coercive or threatening language, or promising employees benefits that they may receive should they vote against unionization.

Should you have questions concerning this or any other labor and employment matter, please contact our offices for assistance.

President Biden’s Personnel Changes at the NLRB Under Scrutiny

By:  David Keating

Within two days of taking office, President Biden fired National Labor Relations Board (“Board”) General Counsel Peter Robb, Robb’s Deputy General Counsel Alice Stock, and named Member Lauren McFerran, the only Democratic member of the Board, as its Chairman.  These unprecedented firings have resulted in great scrutiny of the new administration from employers.

Following the firings, President Biden named Peter Sung Ohr as Acting General Counsel of the Board.  Ohr is a career employee of the Board. He served as a Field Attorney, Deputy Assistant General Counsel in the Board’s Division of Operations-Management, and as a Regional Director of the Board’s Chicago Regional Office.

Since being named Acting General Counsel, on February 1, 2021, Ohr rescinded a number of General Counsel Memos issued by Robb during the Trump administration.  According to Ohr, he determined that a number of outstanding Robb memoranda are either inconsistent with encouraging the practice and procedure of collective bargaining, the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment.

A summary of notable Robb memoranda that were rescinded by Ohr:

  • GC 18-04, Guidance on Handbook Rules Post-Boeing (June 6, 2018) (instructing Regions on the placement of various types of employer rules into the three categories set out in the then-recent Board decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017)). Ohr indicated that this Memorandum is being rescinded as it is no longer necessary, given the number of Board cases interpreting Boeing that have since issued.
  • GC 18-06, Responding to Motions to Intervene by Decertification Petitioners and Employees (Aug. 1, 2018) (requiring Regions to no longer oppose intervention in ULP hearings by proposed Intervenors such as individuals who have filed a decertification petition or circulated a document upon which the employer has unlawfully withdrawn recognition of the collective-bargaining representative). Ohr noted that this is inconsistent with prior practice.
  • GC 19-03, Deferral under Dubo Manufacturing Company (Dec. 28, 2018) (instructing Regions to defer under Dubo [142 NLRB 431 (1963)], or consider deferral thereunder, of all Section 8(a)(1), (3), (5) and 8(b)(1)(A), and (3) cases in which a grievance was filed and not to apply Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014) (“Babcock”) to cases that could be deferred under Dubo). Since Babcock was overruled by United Parcel Services. Corp., 369 NLRB No. 1 (Dec. 23, 2019), GC 19-03 is outdated. To the extent the memorandum made changes to case handling procedures relating to the deferral of cases under Dubo, Ohr directed Regions to follow Section 10118.1(c) of the Unfair Labor Practice Casehandling Manual and the memoranda cited therein.
  • GC 20-08, Changes to Investigative Practices (June 17, 2020) (instructing Regions on how to proceed during investigations in connection with securing the testimony of former supervisors and former agents, and how audio records should be dealt with during investigations). Ohr noted that this Memorandum is being rescinded because portions are inconsistent with prior practices. Regions should continue to not accept recordings that violate the Federal Wiretap Act and to apprise individuals who proffer recorded evidence when it may violate state law.
  • GC 20-13, Guidance Memorandum on Employer Assistance in Union Organizing (Sept. 4, 2020) (requiring Regions to urge the Board in charges involving union neutrality agreements to adopt the “more than ministerial aid” standard used in union decertification cases).

Ohr’s full memorandum can be viewed here.

Although Ohr’s recent action does not change Board precedent, it provides insight as to his priorities in the event he is named General Counsel.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent actions at the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.


By: David C. Keating

The National Labor Relations Board (“Board”) continues to restore employer rights under the Trump administration.  Within the last week, two decisions have been handed down by the Board overturning prior Obama administration decisions.

Employer’s Right to Restrict E-mail Use

In a decision dated December 16, 2019, the Board reestablished the right of an employer to restrict employee use of its e-mail system so long as the restrictions are set forth on a nondiscriminatory basis.

Overruling the Obama Board decision in Purple Communications, Inc., which held that employees have a presumptive right to use the system, on non-working time, for communications protected by Section 7 of the National Labor Relations Act (“Act”), the Board, in Caesars Entertainment, 368 NLRB No. 143, held that employees do not have the statutory right to use employer e-mail or other information-technology resources to engage in non-work-related communications.  Rather, employers have the right to control the use of their equipment, including e-mail and other IT systems, and may lawfully restrict the use of those systems, provided that, in doing so, the employer does not discriminate against union or other protected communications.

The Board’s decision in Caesars does recognize that employees must have adequate avenues to engage in communications protected by Section 7 of the Act.  The decision creates an exception for circumstances where the use of employer-provided e-mail is the only reasonable means for employees to communicate with each other on non-working time during the workday.

Workplace Investigation Confidentiality Rules of Limited Duration Are Lawful 

In Apogee Retail LLC, 368 NLRB No. 144, dated December 16, 2019, the Board held that employer work rules requiring confidentiality during the course of a workplace investigation are presumptively lawful.

Overturning the Obama Board decision in Banner Estrella Medical Center, which required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality, the Board in Apogee concluded that the framework set forth in Banner improperly placed the burden on the employer to determine whether its interests in maintaining the integrity of an investigation outweighed employee Section 7 rights.

By applying the test for facially neutral workplace rules recently established in Boeing Company, 365 NLRB No. 154 (2017), the Board determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.  In this case, the Board remanded the case for further consideration because the employer’s confidentiality rules did NOT limit confidentiality to the duration of the investigation.

This decision is more aligned with EEOC enforcement guidance.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about lawfully restricting the use of your Company’s e-mail system, work rules or any other labor or employment matter involving your business, please either contact me at or any other attorney you may work with at the firm.