NLRB Changes Course Regarding Work Email and Confidentiality of Investigations 

December 23, 2019

The National Labor Relations Board (NLRB) issued two decisions on December 17, 2019, that reversed prior precedent on key workplace issues. In these decisions, the NLRB held that (1) employers may prohibit employees from using company email for non-business purposes; and (2) employers may require confidentiality during open investigations. Both decisions will have immediate effects on key workplace rules.

Business Use of Email

In Caesars Entertainment, 368 NLRB No. 143 (December 17, 2019), the NLRB ruled that Caesars’ policy that banned the use of its email system for non-business purposes did not violate federal labor law. This reverses the NLRB’s decision in Purple Communications, 361 NLRB 575 (2014), which had previously held that employer rules prohibiting employees from using company email systems for union activities were presumptively invalid.

In reversing Purple Communications, the NLRB held “employees have no statutory right to use employer equipment, including IT resources for [NLRA] section 7 purposes.” It is important to point out that it remains unlawful for employers to maintain polices for work email that treat union discussions differently than other non-work communications. In other words, if an employer wishes to maintain an email policy that prohibits union discussions on work email and other computer and IT systems, it must enforce the policy equally for all non-business purposes. Also, the NLRB pointed out in Caesars that there is an exception that would allow workers to use company email for union business when it is “the only reasonable means for employees to communicate with one another.”

Because many employers revised their email and computer use policies after Purple Communications, all employers should revisit their current policies to determine if they are written in the most effective manner.

Confidentiality of Investigations

In Apogee Retail, 368 NLRB No. 144 (December 17, 2019), the NRLB held that employers may lawfully prohibit employees from discussing open workplace investigations. This decision reverses the NLRB’s previous decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015), in which the NLRB had held that policies requiring confidentiality of investigations infringe upon workers’ rights.

In Apogee, the employer maintained a rule requiring workers “maintain confidentiality” and prohibited “unauthorized discussions” about workplace investigations such as sexual harassment investigations. In reversing Banner Estrella, the NLRB noted that “investigative confidentiality rules are lawful … where by their terms the rules apply for the duration of any investigation.”

Many employers were frustrated by the Banner Estrella decision because they believed that the inability to require confidentiality in workplace investigations could compromise the effectiveness of such investigations.

All employers should review their current policies in light of the Apogee decision.

 


Authors

Brian D. Balonick

Member

bbalonick@cozen.com

(412) 620-6513

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