Legal Alert

NLRB Trend of Employer-Friendly Decisions Continues: Investigative Confidentiality Rules and Use of Employer Emails

December 19, 2019

On the same day as the departure of the lone Democratic Board member, the National Labor Relations Board (NLRB) this week continued its trend of issuing employer-friendly decisions that reverse Obama-era Board precedent. In two December 16 decisions overturning controversial opinions, the NLRB gives employers greater control over workplace investigation confidentiality and use of employer-provided email for non-work purposes.

In Apogee Retail LLC d/b/a/ Unique Thrift Store (368 NLRB 144), the Trump-era NLRB held that blanket rules requiring confidentiality during a workplace investigation are generally lawful. The decision overrules 2015 precedent from Banner Estrella Medical Center (362 NLRB 1108) that banned broad rules requiring confidentiality and mandates that the validity of those rules be determined on a case-by-case basis. On the facts, the Board found that the Apogee Retail rule was not limited to the duration of the investigation. The NLRB remanded the case for analysis of whether the employer had legitimate business justifications for requiring confidentiality even after an investigation’s end, as well as whether those justifications outweighed the rule’s effect on employees’ Section 7 rights to engage in protected activity.

In Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino (368 NLRB 143), the Board held that employers can prohibit employees’ use of employer-provided email and other information-technology resources for non-work purposes, such as union organizing or workplace complaints—if done on a non-discriminatory basis. This decision reverses a 2014 ruling in Purple Communications, Inc. (361 NLRB 1050), holding that access to employer email systems for work-related purposes created a presumption allowing use on non-working time for communications protected by Section 7. The Board determined this week that employers have a property right to control the use of their IT resources, which is not overridden by employee desires for “efficiency and convenience” in discussions with co-workers. The Board observed that employees have other avenues to exercise their Section 7 rights, such as oral solicitations and face-to-face distribution of literature. The Board did carve out an exception for rare situations where the use of employer-provided email was the only reasonable means of communications during the workday.

Both of these decisions reverse Obama-era NLRB initiatives to expand Section 7 protections into employer rules regulating non-union workplaces. Both broaden management’s ability to craft policies and control employee conduct.

Ballard Spahr’s Labor and Employment Group monitors changes in NLRB law and policy, and routinely assists clients in remaining on the leading edge when implementing workplace rules.

Copyright © 2019 by Ballard Spahr LLP.
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