On December 17, 2019, the National Labor Relations Board issued two decisions which dramatically overturn a pair of hotly debated Obama-era rules.
The first sets down a rule allowing employers to limit an employee’s use of workplace email to workplace-related subjects – a measure of control which was forbidden to employers under the earlier rule.
The second presents a new standard which allows employers to lawfully ban employees from discussing ongoing workplace investigations – another standard that make eminent sense in today’s “Me Too” environment.
NLRB Strengthens Employer Control Over Company-Owned Email Systems
The first of these game-changing decisions is Caesar’s Entertainment Corp, which overturns the much debated Purple Communications decision, which had limited an employer’s control over its own email system. Caesar’s Entertainment lifts this restriction by allowing employers to prohibit workers from using company-owned email systems for non-work-related purposes, including communications regarding union organization.
Caesar’s Entertainment reverses the controversial 2014 decision Purple Communications, Inc., 361 NLRB No. 126. In Purple, the NLRB declared that an employer may not ban employees from using company-owned email for union organizing activities after-hours unless the employer can show that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights” to use email for union-related purposes. Equating email communications with oral communications, the NLRB reasoned that email use deserves the same special protection against employer interference as employee union organization talk. Purple thus limited an employer’s property right in the email systems it creates and maintains, while fashioning only a frustratingly vague exception for “special circumstances.”
Caesar’s Entertainment takes a much more reasonable approach, and restores to employers their right to exert reasonable control over how employees may use company email systems. This new ruling does away with the presumption put in place by Purple that employees may use employer email for union-organizing activities unless an employer can show “special circumstances.” In place of this presumption, Caesar’s allows employers to limit employee use of company email for non-work purposes generally, so long as the employer does not single out union-related activities or communications for proscription.
The standard laid out in Caesar’s is effectively the same as that in The Register Guard, 351 NLRB No. 70, the 2007 decision in place before Purple Communications upended the landscape. There is certainly an argument that a return to the earlier standard is a practical and reasonable one for the modern workplace. With the popularity and proliferation of social media and personal devices, employees have the opportunity and the means to communicate freely outside of an employer-owned email system. Detractors may claim the opposite – that allowing employers to forbid employees from using company email for anything other than work-related communications is draconian and out of touch with current workplace usage.
Notably, for employers who have a workplace email usage policy, Caesar’s may also be an enforcement challenge. It the rare employee who has never sent around an email concerning after-work activities or scheduled a dentist appointment through a work email address. In light of the Caesar’s Entertainment decision, employers instituting a partial or complete workplace email usage policy should verify that their policy complies with the new standard.
NLRB Says Employers May Lawfully Restrict Employee Discussion of Ongoing Workplace Investigations
The second significant NLRB reversal of December 17, 2019 comes in the form of a paradigm-shifting standard involving thrift-store operator Apogee Retail, 368 NLRB No. 144. The Apogee decision institutes the new standard that employers may ban employees from discussing workplace investigations without violating the employees’ collective action rights.
This is another totally reasonable standard, which recognizes that confidentiality allows an investigation to proceed in an orderly manner, without being tainted by employee gossip.
The Apogee ruling upends another Obama-era decision, Banner Health System, which held that prohibiting workers from discussing ongoing workplace investigations was an unlawful infringement of workers’ rights. The NLRB ruled that employers cannot institute comprehensive policies which forbid employees from discussing ongoing investigations. The decision did allow for a bit of give, however, in that an employer is allowed to decide, on a case-by-case basis, whether the investigation requires employee confidentiality to uphold a legitimate business interest, such as protecting witnesses or preventing the spoliation of evidence.
In Apogee, the NLRB undertook a similar analysis by comparing workers’ rights to organize with employers’ interest in maintaining the confidentiality of workplace investigations. In Apogee, the Board came out the other way. It reasoned that banning employee discussions of ongoing investigations has little effect on the rights of workers, but serves to protect the privacy of employees involved, as well as maintain the integrity of the pending investigation.
The Board cautioned, however, that the benefits derived from restricting employees from discussing an investigation normally manifest only where the investigation is active and ongoing. Therefore, policies which institute blanket bans on discussing workplace probes may still be likely unlawful.
Apogee Retail had policies in place requiring employees to “maintain confidentiality” surrounding workplace investigations and prohibiting employees from “unauthorized discussion” of these investigations. The policies did not limit the bans to pending investigations. While such widely applicable policies would almost certainly have been unlawful under the earlier Banner Health standard, the blanket ban adopted by Apogee Retail may not fare any better under the more relaxed standard recently laid down in Apogee.
Workplace investigations are already a fraught subject for both employers and employees. Employers who impose confidentiality policies around workplace probes now face a changed landscape following the Apogee decision.