18 December 2019

NLRB Sides with Employers on Email and Confidentiality Rules

On December 17, 2019, the NLRB issued two important decisions impacting private sector employers.

First, in Caesar’s Entertainment, 368 NLRB No. 143 (2019), the NLRB held that employers may lawfully restrict non-business use of company email and are not required to allow employees to use company email or IT systems for union organizing or related purposes.  The only exceptions to an employer’s right to control its property in this respect are when the email system is the only reasonable means for employees to communicate with one another or when the restrictions are made on an unlawful discriminatory basis.  This decision was anticipated and overrules the controversial 2014 decision in Purple Communications.

Second, in Apogee Retail, 368 NLRB No. 144 (2019), the Board held that investigative confidentiality policies are generally lawful to maintain, provided that they are limited to the duration of the investigation.  This is welcome news for employers because conducting a workplace investigation confidentially is often critical for protecting the complaining employee from possible retaliation, ensuring employees are candid and forthcoming when interviewed, and preventing witnesses from coordinating stories.  Apogee Retail overruled a 2015 decision that had significantly limited employers’ ability to require confidentiality during their investigations.

Please contact the authors or your Miller Johnson Employment & Labor attorney with any questions.