It may or may not be due to “being in the Holiday Spirit” but last week the NLRB issued two ruling which are nice gifts to employers.
First, in Apogee Retail, the NLRB approved greater confidentiality in workplace investigations. In doing so the NLRB determined that “investigative confidentiality rules limited to the duration of the investigation are generally lawful”. This means that employers can insist that persons interviewed during a workplace investigation not discuss the substance of the investigation with others and not run afoul of the NLRA by making this request. In reaching this decision the Board rejected the rationale of the 2015 decision Banner Estrella Medical Center, holding that the Banner Estrella decision ‘improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights”.
Second, the Board reversed Purple Communications, Inc. and held that an employer has the right to restrict employee use of its email system to business purposes. Thus, so long as employers are not allowing some non-business use and not others, employers can successfully prevent usage of their email systems for the purpose of organizing a union. The decision, known as Caesars Entertainment Corp., adds an exception letting workers use company email for union organizing when it’s “the only reasonable means for employees to communicate with one another”.