In a pair of significant year-end rulings, the National Labor Relations Board overturned two Obama-era precedents that had restricted the ability of both unionized and non-unionized employers to limit the use of company email and to require internal investigation participants to maintain confidentiality. Both decisions represent a welcome departure from prior Board rulings that had substantially hampered employers from enforcing neutral workplace rules when those rules were alleged to impede union activities.
In the first decision, Caesar’s Entertainment, the Board reconsidered and reversed its 2014 ruling prohibiting employers from requiring that employees’ use of company-owned email systems be limited solely to work-related purposes. In the 2014 decision, Purple Communications, a closely divided Board reversed decades of precedent supporting an employer’s right to control the use of company-owned equipment. Instead, the Board adopted a rule that employers could not prohibit their employees from using company email for the purpose of engaging in protected concerted activity, i.e., communications discussing labor organizing and/or the terms and conditions of their employment.
In Caesar’s Entertainment, a 4-1 majority of the Board flatly overruled Purple Communications, reasoning that it undervalued the private property rights of employers, while also overvaluing the importance of employees’ ability to use company email to facilitate protected communication. Under the new rule adopted by Caesar’s Entertainment, employers may now enforce neutral workplace rules completely restricting the use of company-owned email systems for non-work purposes, including engaging in protected concerted activity. The Board also reaffirmed the longstanding principle that employers may restrict employees’ use of company-owned televisions, bulletin boards, copy machines, telephones, and public-address systems. Caesar’s Entertainment did recognize that there might be narrow exceptions to this general rule in workplaces where company email is the “only reasonable means for employees to communicate with one another,” in which case they must be permitted to use company email for union purposes. However, the Board suggested that such workplaces will represent a rare exception, and that in the vast majority of workplaces, employees have access to other reasonable avenues of communication—albeit perhaps less convenient ones—such that company email systems may remain off limits for non-work purposes.
In Apogee Retail, another 4-1 decision, the Board reversed a 2015 ruling that prohibited employers from requiring employees to maintain the confidentiality of internal investigations. Apogee Retail creates a two-part test with respect to confidentiality rules. As to rules that require employees to maintain the confidentiality only of open or ongoing investigations, the Board held that such rules are generally and presumptively valid, provided they are not applied in a discriminatory manner. As to rules requiring confidentiality after the conclusion of an investigation, the Board held that such rules are subject to a case-by-case analysis to determine whether the “adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.” While the Board did not have an occasion to apply this standard to the facts of the case at hand, as the evidence on that question had not been fully developed, the Board did suggest that concerns such as protecting the safety and security of an informant would likely constitute a sufficient reason to require confidentiality beyond the conclusion of an investigation.
Both of these recent decisions allow employers greater flexibility to protect their property rights and internal processes by applying facially neutral rules, even when those rules may adversely impact employees’ NLRA rights. We recommend that employers review their existing policies concerning the use of company email and the confidentiality of workplace investigations to realign their policies with the expanded rights now established by the Board.