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 dkeating@lindner-marsack.com or any other attorney you may work with at the firm.