Insight

The NLRB Bears Gifts for Employers - Just in Time for the Holidays

The NLRB Bears Gifts for Employers - Just in Time for the Holidays

Elizabeth A. Coonan

Elizabeth A. Coonan

December 19, 2019 03:47 PM

NLRB Rulings Shake Up Previous Standards

On December 16, the National Labor Relations Board (NLRB) issued two decisions which overrule previous standards regarding workplace confidentiality and work email usage for personal communications. We expect employers will see these as welcome changes. Read on for more good cheer.

Apogee Retail LLC d/b/a Unique Thrift Store (Case No. 27-CA-191574)

In the Apogee retail decision issued yesterday, the NLRB examined two written rules disseminated by the employer – one which required employees to “maintain confidentiality” regarding workplace investigations into illegal or unethical behavior and the other prohibiting “unauthorized discussion” of investigations or interviews with other employees. Previous guidance on this issue demanded a case-by-case determination on whether confidentiality could be required for a specific investigation (Banner Estrella Medical Center, 362 NLRB 1108 (2015)). The Banner decision was overruled by the NLRB, and going forward, the Board is adopting the facially neutral test in Boeing Co. (365 NLRB No. 154 (2017)).

This facially neutral test permits investigation-related confidentiality rules if confidentiality obligations apply for the duration of the investigation. To the extent that there is no time limit on the confidentiality provisions, then a case-by-case analysis is required of any post-investigation adverse impact on NLRA-protected conduct. In short, such investigation-related confidentiality provisions should be narrowly tailored to ensure employers can take full advantage of the new ruling.

Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino (Case No. 28-CA-060841)

The issue before the NLRB in this case centered on whether employees were permitted to use email and IT resources for the purpose of engaging in personal activities protected by Section 7 of the NLRA – specifically those activities involving labor organizations, collective bargaining groups, and the like. The NLRB reviewed “decades” of board precedent and came to the conclusion that the precedent of allowing employees to utilize employer-owned equipment for non-work purposes violated the Supreme Court’s view that an employer’s organizational rights are akin to property rights. This decision returns to the standard that “employees have no statutory right” to use employer equipment, including IT resources, for Section 7 purposes. However, the NLRB did carve out an exception for the rare cases where an employer’s email system is the only means for employees to communicate with one another.

It looks like it is time once again to start amending those handbook policies.

For more information, contact Beth Coonan and Caitlin Klingenberg at coonan@brownwinick.com and klingenberg@brownwinick.com, or another member of BrownWinick’s Employment Law Practice Group.

Related Articles

The Other Shoe Drops—The NLRB’s “Contingent Workforce” Activism Continues


by Timothy C. Kamin

The NLRB will now permit a single bargaining unit to include employees who are solely employed by an employer along with other employees who are jointly employed by that employer and a staffing provider, all without the consent of either employer.

Employee Activism

Clear and Unmistakable Uncertainty


by Joseph J. Brennan and William D. Edwards

MV Transportation and the battle over the contract coverage test.

Uncertainty for Unionized Workers

Trending Articles

Presenting The Best Lawyers in Australia™ 2025


by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing The Best Lawyers in New Zealand™ 2025 Awards


by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing The Best Lawyers in Japan™ 2025


by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition


by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

How Much Is a Lawyer Consultation Fee?


by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide


by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Attacked From All Sides: What Is Happening in the World of Restrictive Covenants?


by Christine Bestor Townsend

One employment lawyer explains how companies can navigate challenges of federal and state governmental scrutiny on restrictive covenant agreements.

Illustration of two men pulling on string with blue door between them