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Employer Rights to Control the Workplace Reinstated by President Trump's NLRB

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On December 17, 2019, the National Labor Relations Board issued two decisions that reversed troubling precedents and restored rights to employers.  First, the NLRB reiterated that employers have a right to control the use of their equipment, specifically email, when use is non-work related. Second, the NLRB restored employers’ ability to maintain the integrity of a workplace investigation by requiring confidentiality during active, pending investigations.

Employers May Exercise Right of Control over Work Emails

On December 17, 2019, the NLRB reaffirmed the right of employers to restrict employees from using company email systems for union business by simultaneously reversing and reestablishing prior precedents.[1] In 2007, the NLRB ruled in Register Guard[2] that employees have no statutory right to use their employers’ email systems for union activity. In 2014, the NLRB reversed course and ruled that employers must permit employees to use their work emails for union purposes during non-work hours.[3]

The NLRB’s 2019 decision in essence put employers back in the same position they occupied when the Board decided Register Guard.  The Board’s 2019 decision reestablishes the right of employers to mandate that employees use their company email systems for work business only, as long as employers do so on a nondiscriminatory basis.  This applies to non-working hours as well. The 2019 decision adds a caveat to this right, however, which lets employees use their work email for union business when it is the only reasonable means for employees to communicate with one another.

Employers May Guard Confidentiality in Workplace Investigations

Similarly, the NLRB reversed recent precedent by finding that employers can restrict employees from discussing active, pending workplace investigations.[4] In 2015, the NLRB ruled that confidentiality requirements about workplace investigations violated employees’ organizing rights under the National Labor Relations Act (NLRA).[5] In reversing the NLRB’s 2015 decision, the NLRB applied the test for facially neutral workplace policies that was laid out by the NLRB in 2017.[6] The NLRB concluded that the prohibition on discussing ongoing investigations had only a slight effect on employee’s NLRA rights and was outweighed by the employer’s  interest in protecting employees’ privacy and the integrity of the investigation.

Conclusion

The two most recently issued decisions described above are supportive of employers’ rights to govern the workplace. These rights include the right to control employees’ use of their work email for union activity and the right to protect confidentiality during a workplace investigation. These decisions are welcome developments for employers heading into 2020.

 

 

[1] Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019).

[2] 351 NLRB 1110 (2007).

[3] Purple Communications, Inc., 361 NLRB No. 126 (2014).

[4] Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019).

[5] Banner Estrella Medical Center, 362 NLRB 1108 (2015).

[6] See The Boeing Company, 365 NLRB No. 154 (2017).

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