National Employment Perspective: Focus on the NLRB and Employee Communication

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Recent Changes to NLRB Guidance Regarding Employers’ Policies Involving Employee Communication

Two recent decisions by the National Labor Relations Board (NLRB) have significantly overturned earlier rulings regarding employers’ abilities to prohibit certain forms of worker communications. Under these decisions, employers may now ban workers from using employers’ email systems for nonbusiness purposes, including union business, and prohibit workers from discussing ongoing workplace investigations.

Employers May Prohibit Personal Email Use on Employers’ Email Systems

The Board held that an employer may prohibit workers from using its email system for nonbusiness purposes, including union business, if the prohibition does not treat union business differently from other outside organizations and the employer’s email system is not the only reasonable means for employees to communicate with one another.

In the decision, the NLRB ruled that Caesars Entertainment Corporation did not violate federal labor laws with its casino’s policy forbidding workers from using its email system for nonbusiness purposes, including union business. This decision overruled the 2014 NLRB Purple Communications ruling that allowed workers to use their employers’ email system to organize or engage in other concerted activities protected by Section 7 of the National Labor Relations Act (NLRA).

This recent decision effectively reinstates a prior NLRB ruling from 2007, which found that employers’ policies prohibiting the use of employers’ email systems for nonbusiness purposes are only illegal to the extent the policies treat unions differently than similar outside organizations. The Caesars Entertainment decision adds an exemption to this approach by allowing employees to use their company email addresses when it is “the only reasonable means for employees to communicate with one another.”

Employers May Forbid Workers from Discussing Workplace Investigations

In its Apogee Retail decision, the NLRB found that employers do not violate workers’ rights to act collectively when the employer prohibits employees from discussing workplace investigations for the duration of the investigation, effectively overturning the 2015 NLRB decision.

In the 2015 decision, the NLRB found that such policies generally infringe workers’ rights using a test that examined whether workers would “reasonably construe” workplace rules to infringe their organizing rights. However, the NLRB replaced that test with a new test in 2017.

Under the current test, agency officials are directed to place rules into one of three categories along a spectrum of legality when weighing policy challenges. The three categories are composed of:

  1. Rules that are presumptively legal because they have no effect on workers’ rights or because employers’ reasons for maintaining them outweigh the infringement.
  2. Rules that more strongly affect workers’ rights but may be legal on a case-by-case basis if employers can justify them.
  3. Rules that are always illegal because employers cannot justify their adverse effect on workers.

In the Apogee Retail decision, the NLRB placed the rule prohibiting workers from discussing pending investigations into the first category, finding that the rule has a comparably slight effect on NLRA rights while protecting workers’ privacy and aiding probes.

Looking Forward

The impact of these NLRB decisions are significant and will be well-received by management. These rulings are consistent with long-established NLRB policy and balance workplace considerations in a pragmatic manner.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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