Two decisions announced last month by the National Labor Relations Board (NLRB) will impact millions of Americans workers who use their employer’s email system for non-work purposes or who are told by a boss to remain silent about a workplace investigation.
The NLRB is an independent federal agency tasked with addressing unfair labor practices. Most of its cases involve Section 7 of the National Labor Relations Act which guarantees most employees the right to collective bargaining and other “mutual aid or protection” activities including talking about workplace conditions.
On Dec. 17, the Board overturned two previous board rulings which had given employers less control of the workplace out of concern for Section 7 rights. The first case involved a Washington company which required its employees to temporarily maintain confidentiality about in-house and criminal investigations to ensure “diligent and effective” outcomes.
The violation lodged against the company was based on a 2015 NLRB ruling which found Phoenix-based Banner Estrella Medical Center engaged in unfair labor practices when hospital officials threatened employees with possible termination if they talked with each other about a co-worker who was the subject of an internal investigation.
However, last month the NLRB overturned the Banner Estrella ruling, noting that the imposition of temporary confidentiality rules to protect the integrity of a workplace investigation “are generally lawful” despite Section 7. The new ruling does not apply to workplace rules which mandate permanent confidentiality.
Also on Dec. 17, the NLRB reversed a 2014 decision which held that employees who are granted access to an employer’s email system had “a presumptive right” to use that system for non-work purposes. Now, the NLRB has ruled that employers have the right “to control the use of their equipment, including their email and other IT systems,” provided the restrictions do not discriminate against employees’ Section 7 rights.
The ruling last month permits employers to govern the use of their systems outside of working hours with one exception — accommodations must be made for Section 7 communications “where an employer’s email system furnishes the only reasonable means for employees to communicate with one another” about workplace issues.
Prior to ruling on the email matter, the Board received 19 amicus brief filings from business and labor organizations, including the Restaurant Law Center and the International Brotherhood of Electrical Workers.