NLRB Sets New Standards for Email and Confidentiality Rules
The National Labor Relations Board (NLRB) has ruled that employers generally have the right to restrict employee use of the employer's email systems as long as they do so on a nondiscriminatory basis. In a separate case, the NLRB ruled that employers can require confidentiality during the course of workplace investigations.
Background:
Section 7 of the National Labor Relations Act, which is enforced by the NLRB, gives employees the right to unionize and/or act together to advance their interests. Employees are entitled to act together to improve their wages and working conditions, regardless of whether they are in a union.
Email:
In 2014, the NLRB heard a case (Purple Communications) testing whether employees have the right to use their employer's email systems to organize a union or to work together to improve wages, terms, and conditions of employment. In the Purple Communications case, the employer had a policy limiting employees' use of company email to business purposes only. At that time, the NLRB ruled that that the presumption is that employees do have a right to access their employer's email system to engage in Section 7-protected activities, provided that:
- It is done on nonworking time; and
- The employer has given them access to the email system for other purposes.
Confidentiality Rules During Investigations:
In 2015, the NLRB heard a case (Banner Estrella Medical Center) testing whether employers can have a blanket ban on discussing ongoing investigations. At that time, the NLRB held that such a policy wasn't permitted, unless there is a legitimate business justification that outweighs employees' Section 7 rights. The NLRB said at the time that in order to implement such a rule during any given investigation, the employer must first determine whether:
- Witnesses need protection;
- Evidence is in danger of being destroyed;
- Testimony is in danger of being fabricated; or
- There is a need to prevent a cover up.
New Standards:
Email:
On December 16, 2019, the NLRB overruled the 2014 Purple Communications decision and held that employees don't have a statutory right to use employers' email (or other information-technology systems) to engage in non-work-related communications. The NLRB did create an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday. The NLRB didn't define the scope of the exception but did note that it should apply rarely since employees would typically have other reasonable means for engaging in Section 7 activity, such as face-to-face interactions.
In overruling the Purple Communications decision, the NLRB said that employers generally have the right to control the use of their equipment, and they may lawfully exercise that right to restrict the use of those systems, provided that they don't discriminate against union or other protected activities in doing so. An employer may violate this standard if they allow workers to discuss non-work-related issues such as TV shows or sports via email but prohibit employees from discussing union-related issues. In other words, if employers adopt rules restricting company email use to only business purposes, employers must consistently enforce the rules, which can be a challenge.
Confidentiality Rules During Investigations:
On December 16, 2019, the NLRB also overturned the Banner Estrella Medical Center decision. The NLRB's position now is that facially neutral confidentiality rules that are limited to the duration of the investigation are generally lawful and don't require a case-by-case analysis. However, confidentiality rules that extend beyond current or open investigations require individualized scrutiny to determine any adverse impact on NLRA-protected conduct. Therefore, employers that wish to ask for confidentiality during an investigation should make clear that it is limited to the duration of the investigation. Additionally, employers that wish to request confidentiality after the investigation should work with legal counsel to ensure that there are legitimate justifications that outweigh the potential impact on Section 7 rights.
Conclusion:
In light of these two decisions, review your policies and practices to determine if changes should be made, consulting legal counsel as needed.
