Labor & Employment Law Daily Reversal of Obama-era Board rulings continues as McFerran’s term wanes
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Tuesday, December 17, 2019

Reversal of Obama-era Board rulings continues as McFerran’s term wanes

By Lisa Milam, J.D.

In divided 4-member decisions, the NLRB restored employers’ right to restrict the use of company email and OK’d work rules demanding confidentiality in workplace investigations.

Continuing its practice of issuing significant, often controversial decisions on the eve of a Board member’s departure, a divided four-member NLRB reversed two decisions issued by the Obama Board that had been a source of much consternation for employers. The rulings, issued on December 16, the final day of Democratic Member Lauren McFerran’s term, were only released today.

Purple Communications reversed. In Caesars Entertainment dba Rio All-Suites Hotel and Casino, the Board overruled its 2014 Purple Communications, Inc. decision and “reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis,” according to a NLRB press statement announcing the decision.

In Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the Act.

In the decision announced today, the Board rejected this premise, finding that employees do not have a statutory right to use employers’ email or other IT resources for non-work-related communications, including NLRA-protected communications. “Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications.” With its Caesars Entertainment decision, the Board effectively reinstates its 2007 holding in Register Guard.

However, “[r]ecognizing that employees must have adequate avenues to engage in communications protected by Section of the NLRA,” the Board created an exception in circumstances where the employer’s email system “is the only reasonable means for employees to communicate with one another on non-working time during the workday.”

The Board’s sole Democrat, outgoing Member Lauren McFerran, dissented in part.

Confidentiality of investigations restored. In another decision, Apogee Retail LLC dba Unique Thrift Store, the NLRB held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. Apogee Retail overturns a 2015 decision, Banner Health System dba Banner Estrella Medical Center, which required employers to prove on a case-by-case basis that the integrity of an investigation would be compromised without confidentiality. However, the Board found that this framework “improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights,” a burden that runs contrary to both Supreme Court and Board precedent, according to the Board majority. The majority also noted that this new standard is “better aligned with other federal guidance, including EEOC enforcement guidance.”

Boeing test. The Board applied the test set forth in The Boeing Co. for evaluating facially neutral workplace rules under the Act “and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.” In the case at hand, the rules did not limit the confidentiality directive to the duration of the investigation; therefore, the majority remanded the case for further consideration.

Member McFerran dissented from this decision as well.

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