Last month, the National Labor Relations Board continued its recent pattern of reversing controversial pro-employee decisions made when Democrats held a majority of board seats. These cases affect employer rules governing both unionized and non-unionized workplaces.
First, in Caesars Entertainment, the NLRB overruled its 2014 Purple Communications precedent, reasserting employers’ rights to bar employees from using their email and other electronic communications systems for non-work purposes. The earlier decision had banned such policies, even if they apply on a neutral basis to communications for any purpose. The current board found no statutory basis for overruling an employer’s ability to proscribe use of its own communications systems, as long as the rule does not single out protected conduct such as union organizing.
In the second case, Apogee Retail, the NLRB overruled its 2015 Banner Health System decision, concluding that employers investigating workplace misconduct can uniformly require that employees involved in the review maintain its confidentiality during the term of the investigation. Employers no longer have to demonstrate that the integrity of the specific investigation would be compromised absent the confidentiality requirement.
These decisions collectively reset the board’s position with regard to traditional and ordinary employer policies. Absent a demonstration that the policies are intended or implemented to interfere with employees’ concerted activity rights, the NLRB will presume that they are permissible.