Same As It Ever Was: NLRB Turns Back the Clock, Prompting Employee Handbook Revisions

By: Attorney Bryan T. Symes – Weld Riley, S.C.

Yesterday, the talking heads at the National Labor Relations Board issued two significant, employer-friendly decisions impacting: (1) employee access to employer e-mail systems for organizational purposes; and (2) employer confidentiality directives in the context of workplace harassment investigations.   The decisions are Caesars Entertainment, 368 NLRB No. 143 (Dec. 17, 2019) (e-mail access case) and Apogee Retail, LLC, 368 NLRB No. 144 (Dec. 17, 2019) (confidentiality directive case).   As explained below, these two Board decisions collectively pave the way for more employer-friendly employee handbook policies—and also correct one untenable policy conflict between the EEOC and the Board.  For those readers keenly familiar with the Board’s regular, politically-borne vacillation in connection with topics like those addressed through Caesars Entertainment and Apogee Retail, LLC, what happened yesterday is not a once-in-a-lifetime event.   However, as explained briefly below, the Caesars Entertainment and Apogee Retail, LLC decisions continue the Board’s undeniable trend of employer-friendly decisions aimed at restoring many pre-Obama era labor law standards.     

First, through Caesars Entertainment, the Board overturned the controversial, Obama-era Purple Communications decision [361 NLRB 1050 (2014)].   Purple Communications bestowed upon certain employees the legal right to access employer e-mail systems during nonworking time for the purpose of union organizing.   According to the Board in Caesars Entertainment, “…Purple Communications impermissibly discounted employers’ property rights in their IT resources while overstating the importance of those resources to Section 7 activity.”    Through Caesars Entertainment, the Board clarified that “…in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another,” employee access to e-mail is required.    The Board also pointed out that “[i]n the typical workplace, however, oral solicitation and face-to-face literature distribution provide more than adequate avenues of communication.”   The Caesars Entertainment decision empowers employers to modify their IT resources policies in recognition of the primacy of employer property rights.    

Second, through Apogee Retail, LLC, the Board overturned another controversial, Obama-era decision—Banner Estrella Medical Center, 362 NLRB 1108 (2015).  Banner Estrella Medical Center stood for the untenable proposition that confidentiality directives issued in the context of workplace investigations—directives given in response to a legal obligation to conduct appropriate investigations under federal anti-discrimination law—could violate the NLRA.   According to the Obama-Board in Banner Estrella Medical Center, before issuing such confidentiality directives, employers were required to engage in a case-by-case, individualized assessment of factors including, but not limited to: (1) whether witnesses are in need of protection; (2) whether evidence is in danger of being destroyed; (3) whether testimony is in danger of being fabricated; and (4) whether there is a need to prevent a cover-up.   In response to Banner Estrella Medical Center, many of our clients, at our urging, incorporated references to these same factors within their employee handbooks.   However, in the aftermath of Banner Estrella Medical Center, employers faced an unenviable and uncertain quandary—emphasize confidentiality in connection with workplace investigations and face possible scrutiny under the NLRA, or relax investigative confidentiality standards and risk conducting inadequate investigations under federal anti-discrimination law.    Thankfully, Apogee Retail, LLC clarifies that “…facially neutral confidentiality rules are lawful” for purposes of the NLRA—eliminating the conflict between NLRB and EEOC guidance.  

In the realm of traditional labor relations law, the legal standards applicable to our clients swing back and forth on a regular basis—perhaps, not surprisingly, sometimes our clients ask, “How did I get here?”   In a jocular tone, I sometimes tell our clients, just wait a while—eventually, it will be the same as it ever was!   Caesars Entertainment and Apogee Retail, LLC illustrate this point well.