The NLRB Issues Two Decisions That Continue to Roll-Back Some of the Restrictions Placed on Employers

The NLRB issued two decisions that continue to roll back some of the restrictions the Obama-Era Board had placed on employers.

In the first case, Caesars Entertainment, 28-CA-060841 (Dec. 17, 2019), the Board held that employers are permitted to maintain workplace rules that prohibit employees from utilizing the employer’s IT systems for non-work reasons as long as: (1) there is no evidence of discrimination aimed specifically at Section 7 activity; and (2) the employer’s IT systems are not the only reasonable means the employees have to communicate with one another. This decision overrules the Board’s decision in Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board overruled years of precedent by finding that employers could not prohibit employees from utilizing company-owned e-mail systems for personal reasons during non-working time because that impermissibly limited employees’ rights to engage in Section 7 activity. Today, in Caesars Entertainment, the Board explained that there is no statutory right for employees to use an employer’s IT systems for non-work reasons. The Board stated further that the Purple Communications decision failed to protect the employer’s property rights to its own systems. The Board did carve out two exceptions to the general proposition that employers can prohibit non-work use of their IT systems. First, there can be no discrimination, so the prohibition against non-work usage cannot be aimed specifically at Section 7 activity. Second, employers cannot prohibit employees from using their IT systems for non-work reasons if doing so essentially would eliminate the employees’ only reasonable means of communicating with one another. The Board expressly stated, however, that such circumstances would be “rare.”

In the second case, Apogee Retail, LLC, 27 CA 191574 and 27-CA-198058 (Dec. 17, 2019), the Board overruled its prior decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015) by holding that employer rules prohibiting employees from discussing workplace investigations for the duration of the investigation are presumptively legal. Previously, under the rule announced in Banner Estrella, employers had to prove on a case-by-case basis that confidentiality was required to maintain the integrity of a specific investigation. Today, in Apogee Retail, the Board applied the standards announced in the landmark Boeing Co. decision and found that workplace rules prohibiting employees from discussing workplace investigations for the duration of the investigation fell under Category 1 and were lawful. If, however, a rule prohibits employees from discussing an investigation beyond the conclusion of the investigation, the rule falls under Category 2, and the employer must provide at least one legitimate reason for requiring confidentiality past the end of the investigation and that reason must outweigh any impact the prohibition may have on employees’ Section 7 rights.

Both decisions are illustrative of the Board’s recent movement away from the Obama-Era Board’s philosophy, which dramatically increased the impact of the NLRA on private employers in 2014 and 2015.

If you have questions about this new rule, please contact Julia S. Acken, or any other attorney in our Labor and Employment practice.

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