The NLRB’s Gift of Policy Guidance
As many of you may know, I am a handbook nerd. I think handbooks and the policies contained within are wonderful (ask me about how each handbook is both a sword and a shield). Company policies are as varied as the printing on wrapping paper, and can be edited in more ways than you can ever tie a pretty bow. One of the nagging compliance concerns for handbook policies in recent years is whether the NLRB will find the language used to be in violation of employees’ rights under the NLRA. We previously mentioned that on June 6, 2018, the NLRB’s General Counsel published Guidance on Handbook Rules Post-Boeing, which gave employers more clarity as to what policies can and cannot be enforced in handbooks. Well, on December 17, 2019, the NLRB delivered two more gifts of guidance relating to handbook policies.
In a decision involving Caesars Entertainment Corp. and the Rio All-Suites Hotel and Casino, the NLRB specifically decided that employees have no statutory right to use employer equipment, including email and other IT resources, for non-work related reasons, including union and organizing purposes. This decision effectively says that handbook policies restricting employee usage of the company’s email system are lawful, as long as the restrictions are non-discriminatory. The Board offered an exception for circumstances where the use of the company email system is the only reasonable method of employee communication. From an employer standpoint, this decision means that a company can have a policy banning the use of the company’s email for non-work related purposes. But be careful – if the policy says that, every email to a travel agent about vacation, to the basketball team about practice, or to the dinner club (all of which are non-work-related) becomes a policy violation. Tread carefully in drafting or implementing such a policy.
The second NLRB present involves the confidentiality of workplace investigations. The NLRB specifically said that having a policy requiring employees to keep the subject matter of a workplace investigation confidential is lawful, as long as the rule of confidentiality is limited to the timeframe of the active investigation. In reaching its decision, the Board applied the 2017 guidance (mentioned above) and determined that confidentiality rules are lawful under the applicable analysis. However, the confidentiality rules should limited to the duration of the investigation, and the ones at issue were not. The case was remanded, and remains ongoing.
Both of these decisions could be appealed to federal district court. For now, employers are well advised to perform an annual handbook policy review, and keep these two pieces of guidance in mind. Happy Holidays, and cheers to the new version of your current handbook!