On Dec. 16, 2019, the National Labor Relations Board (NLRB) handed employers a pair of early holiday gifts, easing rules related to workplace investigations and use of employer email imposed by the board during the Obama administration.

Workplace investigations

In the first case, involving a dispute between Apogee Retail, a second-hand clothing store, and one of its employees, the NLRB held that rules requiring that employees maintain confidentiality during the course of an active, internal investigation are lawful and do not infringe on employees’ protected rights to engage in “concerted activity” under Section 7 of the National Labor Relations Act. In contrast, rules that could extend beyond the duration of an active investigation must be examined on a case-by-case basis to determine whether any adverse impact on Section 7 rights is outweighed by legitimate justifications.

The Apogee ruling reversed the NLRB’s 2015 Banner Estrella decision, where a case-by-case analysis was required regardless of whether the confidentiality rule was limited to active and ongoing investigations, and employers bore the burden of proving that its business interests justified the restriction. The Board justified its turn of course by highlighting the “substantial and compelling” business justifications that an employer might have for requiring confidentiality during active investigations, including, but not limited to: preventing theft, protecting employee privacy, limiting opportunities for retaliation and ensuring the integrity of investigations. In contrast, the Board reasoned that the impact of such rules had a minimal effect on employees’ Section 7 rights: employees remain able to discuss incidents so long as they do not disclose information learned or provided in the course of the investigation. 

Employers looking to take advantage of this new ruling should recognize its limited application to active investigations. Apogee Retail’s actual policy did not explicitly limit its confidentiality requirement to ongoing investigations. As such, the NLRB remanded the case to a lower court to balance the employer’s justifications for the confidentiality rule against the impact on employees’ Section 7 rights.

Employer email

In the second case, involving a dispute between the Caesar’s Entertainment-owned Rio Hotel and Casino in Las Vegas and its employee union, the NLRB held that, with limited exceptions, an employer has the right to control the use of its equipment, including employer-provided email. As a result, both union and non-union employers may limit or restrict the use of employer email for non-work purposes on a content-neutral basis, even if such a policy would negatively affect employees’ ability to communicate with each other about the terms and conditions of their employment.

The Caesar’s decision overturned the NLRB’s controversial 2014 Purple Communications decision, which held that blanket restrictions on employees’ ability to use company email for non-work purposes unlawfully infringed upon workers’ Section 7 rights. In that case, the NLRB held that modern technology had transformed employer email systems into a “natural gathering place,” much like a breakroom or employee cafeteria, making protection necessary in order to preserve employees’ ability to communicate with each other.

In reversing Purple Communications, the NLRB acknowledged that, in most cases, there are many other reasonable ways for employees to communicate beyond employer email systems, such as smartphones, personal email accounts and social media. Consequently, the Board reasoned that an employer’s property interest in maintaining control over its electronic systems should outweigh any additional convenience that employer email represents over other forms of communication.

The Caesar’s decision gives both union and non-union employers the freedom to impose content-neutral restrictions (i.e. restrictions that do not discriminate based on subject-matter or viewpoint) on employer email accounts except in those rare cases when employer email is the only viable means of communication between employees. Thus, while a restriction on using employer email for “non-work” purposes is acceptable under the new ruling, restricting the use of employer email to “union activity” is not.

Looking forward to 2020

It remains to be seen how the new standards outlined in Apogee and Caesar’s will play out in practice, and whether different fact patterns might trigger application of one of the exceptions outlined in either case.