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More Handbook Guidance: NLRB Shows When It Will Uphold Policies Regarding Confidentiality, Cell Phones, and Email Usage

Since the National Labor Relations Board issued the precedent-changing Boeing Company decision in late 2017, the Board has continuously illustrated when employment policies will survive scrutiny under the National Labor Relations Act.  Recently, in Argos USA LLC, the Board clarified its position about three common types of employment agreements or policies, i.e., those concerning confidentiality, use of an employer’s e-mail system, and the possession of cell phones in certain workplace areas.

As background, the Board has recognized for decades that employment policies may violate the NLRA if they limit or prohibit ‘protected concerted activities,’ i.e., efforts by employees to improve group working conditions (including, but not limited to, union activities).  A policy can violate the NLRA in this regard even if it is ‘facially neutral’ and does not explicitly prohibit union activities or other protected concerted activities.  In Boeing, the Board announced a new standard for determining when such a ‘facially neutral’ employment policy will violate the NLRA (as we previously discussed here).  Since Boeing, the Board has clarified how that new standard will apply to certain common types of policies, including media contact policies (discussed here) and policies addressing workplace investigations.

Earlier this month, in Argos, the Board showed how it will apply the Boeing standard to the following three items that are regularly maintained by private sector employers:

  • Confidentiality Agreements Governing “Employee Information.” The Board held that a facially neutral confidentiality agreement did not unlawfully limit or prohibit protected concerted activities, where it barred employees from disclosing “all private information not generally known in the industry and not readily available . . . including . . . [the employer’s] employee information.”  The Board reached this decision even though it would be unlawful for an employer to prohibit employees from disclosing certain types of employee information, including information about their own compensation.  The Board reasoned that, because the agreement protected employee information of the employer, employees would not interpret it to apply to their own compensation information (or other employment information they may lawfully disclose).

  • Policy Limiting Cell Phone Usage. The Board also deemed it lawful for the employer to maintain a policy that prohibited truck drivers from possessing cell phones in certain work locations (e., within the cabs of trucks and other large equipment).  The Board reached this conclusion even though one of its administrative judges found that the policy would impede employees from calling each other about workplace issues that affected groups of employees.  According to the Board, because the policy did not prohibit employees from using or possessing cell phones outside the cabs of vehicles, the policy did not unlawfully restrict employees from communicating with each other outside work time.  The Board also deemed it relevant that the employer issued the policy to reduce certain safety risks (i.e., those created by employees talking on cell phones while driving).

  • Policy Barring Employees from Using an Employer’s Email for “Personal Purposes.” This holding resulted from the Board’s recent decision in Caesars Entertainment Corporation (discussed here), where the Board overruled Purple Communications and once again permitted an employer to allow employees to use its email system only for work-related purposes (so long as the employer maintains and applies that policy in a non-discriminatory manner).  Here, because there was no evidence that the employer issued or applied the policy in a discriminatory effort to preclude union activities or other protected concerted activities, the Board deemed it lawful for the employer to bar employees from using its email system for personal purposes.

Employers should continue monitoring how the Board applies Boeing, in order to maximize their ability to protect legitimate business interests, while at the same time keeping their handbooks and policies compliant with the NLRA.

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Of Counsel

Will represents employers in matters involving employees and labor unions. Will litigates a broad variety of labor and employment cases, including labor arbitrations, National Labor Relations Board (NLRB) proceedings involving unfair labor practice charges and representation issues, Section 301 lawsuits, wage and hour actions, wrongful discharge cases and lawsuits involving other labor and employment issues. Will also assists employers with collective bargaining negotiations, union avoidance, employee and supervisor training and other labor and employment counseling matters.

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