Excerpted from the National Labor Relations Board website:
Investigations
In a decision issued today, December 17, 2019, the National Labor Relations Board held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. The case, Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), overturns a 2015 decision— Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017)—that had required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.
The Board concluded that the framework set forth in Banner Estrella improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent. The Board also noted that the new standard better aligned with other federal guidance, including EEOC enforcement guidance.
In today’s decision, the Board applied the test for facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017), and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful. Because the rules at issue in this case did not limit confidentiality to the duration of the investigation, the majority remanded this case for further consideration.
Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.
The decision can be found here.
In a decision also issued on December 17, 2019, the National Labor Relations Board reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis. The case is Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143.
The Board last considered the issue presented here in Purple Communications, Inc., 361 NLRB 1050 (2014). There, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act. Overruling Purple Communications, the Board today holds that employees do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications. Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications. To this extent, the Board effectively reinstated the holding of Register Guard, 351 NLRB 1110 (2007). Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the NLRA, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.
On August 1, 2018, the Board requested briefing from the public in this case seeking input on whether the Board should adhere to, modify, or overrule Purple Communications. The Board received 19 briefs, which it considered in reaching its decision.
Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented in part.
The decision can be found here.
Both of these decisions are welcome news for businesses and a turn toward what we believe is a more reasonable labor policy. If you have any questions about this or any other legal topic, please contact us.