January 30, 2023

Volume XIII, Number 30


January 30, 2023

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NLRB Rolls Back Key Obama-Era Decisions

In a continuing trend, the National Labor Relations Board (NLRB), in late December, issued two important employer-friendly decisions overturning a pair of controversial rulings by the Obama-era NLRB. In Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (Dec. 16, 2019), the NLRB restored an employer’s right to control employee nonwork use of its information technology and email systems — with important exceptions — without violating the National Labor Relations Act (NLRA). In Apogee Retail LLC, 368 NLRB No. 144 (Dec. 16, 2019), the NLRB ruled that a ban on discussing workplace investigations does not violate employees’ Section 7 rights. 

Confidentiality of Investigations

In Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB 1108 (2015), the NLRB invalidated an employer’s workplace investigations policy that instructed interviewees to keep the subject matter of the investigation confidential. The NLRB held that the employer’s blanket policy violated employees’ Section 7 right to discuss discipline or ongoing disciplinary investigations involving themselves or co-workers and concluded that an employer could only require confidentiality if the employer first identified a legitimate and substantial business justification necessitating confidentiality, such as the risk of evidence being destroyed or witness tampering. Thus, after Banner Health, the burden was clearly on the employer to make a compelling case that the special needs of a particular investigation required confidentiality and that such need outweighed employees’ statutory right to discuss workplace issues of mutual concern.

On December 17, 2019, the NLRB revisited employer confidentiality policies and overruled Banner Health. In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (Dec. 16, 2019), the NLRB returned to the pre-Banner Health standard, which presumed the legality of a work rule requiring confidentiality of investigative interviews. The Board determined that confidentiality rules applicable to open investigations are lawful because, while they may affect the employees’ exercise of their Section 7 rights under the NLRA, any adverse impact is comparatively slight. On the other hand, confidentiality rules applied to closed investigations will be individually scrutinized to determine whether any post-investigation adverse impact on NLRA-protected conduct is trumped by legitimate justifications.

Employers can now revisit their workplace investigation policies, particularly if such policies were revised on the heels of Banner Health, and reinstate a requirement of confidentiality as to open investigations. Any instruction as to maintaining the confidentiality of closed investigations continues to be compliant with the NLRA where there is a substantial business justification within the meaning of the initial Banner Health ruling. As always, documenting the factors is important to supporting a confidentiality instruction as to a closed investigation. 

Employee Use of Company Email

In Purple Communications, 361 NLRB 1050 (2014), the NLRB found that employees who were given access to an employer email system had the right to use that email system for nonwork-related purposes, including union organizing and other forms of protected concerted activity. The Purple Communications ruling was inconsistent with decades of Board precedent finding that the NLRA generally does not restrict an employer’s right to control the use of its equipment, including the Board’s ruling in Register Guard, 351 NLRB 1110 (2007), a case applying that standard to an employer’s email system. 

Five years later, the NLRB issued a ruling in Caesars Entertainment, 368 NLRB No. 143 (December 17, 2019), restoring the rule of Register Guard. In Register Guard, the NLRB found that an employer’s property rights extended to control over its email system (and therefore it was lawful for an employer to maintain a blanket ban on employees’ nonwork-related use of employer’s email systems). The NLRB’s recent ruling also reaffirmed that “there is no Section 7 right to use employer-owned televisions, bulletin boards, copy machines, telephones, or public-address systems.”

The recent ruling in Caesars Entertainment recognized two important limitations on an employer’s right to control its email system. First, like all other employer rules, those governing IT resources and email systems must not be enforced in a discriminatory manner. This means, for example, that an employer cannot apply a rule prohibiting nonwork use of email to target union activity while tolerating other nonwork uses of emails like charitable solicitations or personal correspondence. Second, the Board created what it called a “rare” exception permitting employees to use employer-owned IT systems for nonwork purposes where there are no other reasonable means for employees to communicate regarding Section 7 activity. While stating that this exception will be rarely applied because employees at most work locations have adequate avenues of communications, the NLRB majority declined to otherwise define the exception, leaving it to be “fleshed out” in subsequent cases.

Employers can thus revisit any prior modifications to their policies regarding nonwork-related use of their IT resources, including email systems; however, in doing so, employers should remember that handbook rules and personnel policies restricting use of IT systems cannot be enforced in a disparate manner that discriminates against or restricts communications related to unions or union organizing. 

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About this Author

Mary Gambardella Litigation lawyer Wiggin Dana

Mary brings decades of experience in helping clients comply with ever-changing labor laws and regulations, as well as in managing employment challenges such as sensitive terminations, sexual harassment, reductions in workforce, discrimination claims, and severance agreements. She is a proactive resource for clients seeking her counsel on a variety of human resource issues before they become a costly crisis, as well as a fierce advocate when crises arise.

Mary is Chair of the firm’s Labor, Employment and Benefits Department and regularly represents employers in...

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Peter Lefeber Labor Attorney Wiggin and Dana

Peter J. Lefeber is a Partner in the firm's Labor, Employment and Benefits Department. Having joined Wiggin and Dana in 1980, Mr. Lefeber has practiced labor and employment law exclusively on behalf of private employers for more than three decades. His client base and breadth of experience are expansive, representing management in all aspects of the employment relationship. A significant portion of his work focuses on traditional labor relations, which includes union organizing drives, unfair labor practice cases before the National Labor Relations Board, arbitration hearings primarily...

Lawrence Peikes Employment litigation lawyer Wiggin Dana

Larry represents the interests of management in all aspects of the employer-employee relationship and is particularly experienced in litigation defense. He has advocated for employers in a wide range of employment cases—before arbitrators, mediators, and government agencies as well as in state and federal courts. In a field where most attorneys rarely appear before a judge, let alone a jury, Larry has successfully tried cases on both the federal and state levels. Despite his extensive courtroom experience, Larry is first and foremost dedicated to finding the best, most...

Caroline Park Labor and employment lawyer Wiggin Dana

Caroline is Counsel in Wiggin and Dana's Labor, Employment and Benefits Department and is a member of the firm’s Diversity Committee.

Caroline’s practice encompasses federal and state court litigation and the arbitration and mediation of employment discrimination claims, wrongful discharge claims, wage and hour claims, disputes over the enforcement of covenants not to compete, and other employment-related disagreements. Caroline also represents employers in cases involving claims of discrimination, harassment, and retaliation, before the Commission on Human Rights and Opportunities...

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Amanda Brahm Employment Attorney Wiggin and Dana

Amanda is an Associate in Wiggin and Dana's New Haven office.

Before joining Wiggin and Dana, Amanda was an intern in the Data Privacy and Security Department at the Office of the Attorney General in Hartford, as well as a summer associate at Wiggin and Dana.

Amanda received her J.D. from Wake Forest University School of Law, where she served as the Senior Notes and Comments editor for the Wake Forest Journal of Business and Intellectual Property and received CALI Awards for Excellence in Conflicts of Law,...

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