Employers May Bar Non-Business Use Company Email and Prohibit Discussions About Workplace Investigations
By Dan Combs
In two major decisions issued this week, the National Labor Relations Board (“NLRB”) approved (1) broad restrictions on non-business use of work email systems and (2) company rules prohibiting discussions about ongoing workplace investigations.FN1
In Caesars Entertainment Corp., the Board reversed an Obama-era decision that held employees have a right to use employer-owned and controlled email for non-work purposes.FN2 The Caesars Entertainment decision holds that employees have no statutory right to use employer equipment, including email systems, and as a result that employers may prohibit use of work emails for non-business purposes, so long as employers enforce their policy consistently (i.e., employers cannot discriminate in enforcing a policy against union-related emails versus other non-work emails).FN3 The NLRB reasoned in part that other avenues of communication typically are available to employees at work, and held that in those rare circumstances where employees have no other reasonable means of communicating with each other, restrictions on non-business use of emails may be unlawful.
In Apogee Retail LLC, the NLRB reversed a separate Obama-era decision that presumptively prohibited workplace investigation confidentiality rules.FN4 The NLRB held that rules restricting employees involved in an investigation from discussing open and active workplace investigations are lawful, but that more expansive confidentiality rules prohibiting discussions of all investigations (even investigations that had concluded) require a case-by-case consideration. The NLRB emphasized the important business justifications for requiring confidential investigations, including preserving the integrity of investigations, minimizing the possibility that witnesses will discuss interview questions before being interviewed to coordinate responses, and encouraging prompt reporting without fear of retaliation.
Practical Takeaways
Employers may now lawfully place restrictions on non-business use of work emails and prohibit employees who are involved in an active workplace investigation from discussing the investigation. The wording of such policies is critical, and employers wishing to implement or update their work policies are encouraged to discuss changes with an employment attorney.
Footnotes:
FN1: Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019); Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019).
FN2: Purple Communications, Inc., 361 NLRB 1050 (2014).
FN3: Caesars Entertainment, 368 NLRB No. 143, slip op. at 8 (2019) (discussing Register Guard, 351 NLRB at 1116-1119).
FN4: Banner Estrella Med. Center, 362 NLRB 1108 (2015).