The National Labor Relations Board (NLRB) was created in response to the National Labor Relations Act of 1935 (NLRA) to be “an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.” (https://nlrb.gov/about-nlrb/what-we-do). The National Labor Relations Board oversees the investigation and prosecution of unfair labor practice cases for both unionized and non-unionized private sector organizations.
The National Labor Relations Board (NLRB) has five board members and a General Counsel who are all appointed by the President of the United States. Therefore, it is typical to see rulings and policy changes when there is a change from a Democratic President to a Republican President, as happened in 2016, and vice versa. While the tenure of the Obama administration showed several major rulings in favor of employee-rights, the Trump administration has shifted the focus and has provided some relief for employers trying to remain compliant. December 17, 2019 was a momentous day as two rulings were announced which overturned Obama-era rulings. The first ruling held that employers could limit employee use of a company-owned electronic communications system as long as the restriction was not discriminatory against any employee. The second ruling permits employers to prohibit employees from discussing an investigation in the workplace while it is an active investigation.
The Use of Company-owned Electronic Communications for Nonbusiness Purposes
Regarding employee usage of company-owned electronic communications, the National Labor Relations Board (NLRB) ruled that employers have the right to determine how their company-owned equipment and systems are used and that employees do not have a right to use employer electronic communications equipment and information technology resources for union communications, unless employees have no other way to communicate with each other. In clarifying that company electronic communication systems may be limited to business use only, this case, Caesars Entertainment d/b/a/Rio All-Suites Hotel and Casino, 368 NLRB No. 143, overturned the 2014 Purple Communications, 361 NLRB 1050 ruling which declared that employees have the right to use company-owned electronic communications and information technology systems in their communication regarding union business.
Given this recent ruling, employers are encouraged to review their current policies and employee handbook and determine whether they should be revised in order to be compliant. This is especially true if an employer revised their organizations policies and employee handbook due to the Purple Communications ruling.
Employers are cautioned that any policy restricting the use of company-owned electronic communications for personal use or solicitation must be consistently applied throughout the company. A business-use only policy must apply to all employees and, even though it may be difficult, it must truly be enforced. Therefore, an employee who violates this policy for any reason other than union communication should be disciplined in the same manner as an employee who violates this policy for union communication. As always, company policies may not be discriminatory in any manner in regards to employees discussing wages, hours and terms and conditions of employment with each other, as those are still employee rights.
Employees’ Rights to Share Confidential Information During Active Investigations
The National Labor Relations Board (NLRB) ruled that the requirement of confidentiality during investigations is not an unfair labor practice and that employers may require employee confidentiality during an ongoing workplace investigation. This recent case, Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), overturned an earlier ruling for Banner Health System v. NLRB, No. 15-1245 (D.C. Cir. Mar. 24, 2017) which held that an employer’s confidentiality agreement violated the National Labor Relations Act (NLRA) and that Banner Health System’s over-reaching confidentiality policy was unlawful. According to the NLRB at the time of the Banner Health Systems ruling, companies must make a determination on a case-by-case basis as to whether there is a legitimate business need for confidentiality in each workplace investigation.
The National Labor Relations Board (NLRB), while determining the lawfulness of requiring employee confidentiality during an active workplace investigation, established that while confidentiality rules could impact employee rights provided under the National Labor Relations Act (NLRA), it may be more important to ensure the protection of employee privacy and the integrity of the investigation, which is more likely when confidentiality is preserved. However, it is important to note that the NLRB ruling extends only for the duration of an investigation and is not an unlimited prohibition against employees discussing the events and conditions that occurred prior to an investigation.
The National Labor Relations Board (NLRB) ruling comes into line with the protections against harassment, discrimination, and retaliation in Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission’s (EEOC’s) guidelines, and other federal and state laws. This ruling also allows employers to more confidently deal with investigations which warrant confidentiality. On this surface, this ruling appears to be “employer-friendly” but, in the current climate of workplace harassment, this ruling is also protective of the rights of employee privacy which, in turn, should give employees a confidence and assurance of safety when submitting a complaint.
If employers have not done so already, they are encouraged to review their policies to ensure that their policies fit within the guidelines of this latest ruling. Moving forward, while this ruling allows employers more freedom, it is suggested that, at the commencement of an investigation, employers continue to evaluate the legitimate business need for confidentiality against the protection of employee rights.
For additional information on these recent rulings, please contact us at www.newfocushr.com.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant