Agencies End 2019 With Several Employer-Friendly Decisions

The National Labor Relations Board (NLRB) spent the last few weeks of 2019 issuing several decisions favorable to employers in both unionized and nonunionized workplaces. Of particular note:

Employers may restrict the right of employees to use work email for union business.

In 2014, in Purple Communications, Inc., the NLRB held that employees who have access to their employer’s email system for work purposes have the right to use that system for communications related to union business, as long as such communications occur during nonworking time. As a result, employer rules attempting to restrict or prohibit the use of company email in this way were determined to be invalid.

However, on December 17, 2019, the NLRB overruled Purple Communications. In its decision in Caesars Entertainment Corp., the Board revoked the right of employees to use employer email systems for union business, finding that prohibiting employee use of employer email systems and IT resources does not violate Section 7 of the National Labor Relations Act (NLRA), and that employees “have no statutory right to use employer equipment” for NLRA Section 7 purposes. The Caesars decision generally allows employers to once again prohibit the use of their email system for nonbusiness purposes as long as the employer does not specifically discriminate against or target union-related communications or activity. For instance, an employer may not enforce a rule prohibiting the use of company email for union organizing but allowing it for other personal or nonwork reasons unrelated to the company’s business.

Employers can enforce confidentiality during workplace investigations.

Also on December 17, the NLRB issued a decision in Apogee Retail LLC holding that employers may prohibit employees from engaging in discussions regarding ongoing workplace investigations. A previous ruling in 2015 required employers to make case-by-case determinations regarding whether an investigation would be adversely affected without a nondisclosure requirement. Under Apogee Retail, employers may enforce a uniform rule requiring confidentiality in all workplace investigations.

The NLRB determined that a workplace rule prohibiting employees from discussing an ongoing investigation into, for instance, alleged sexual harassment, would have only a “slight impact” on employees’ Section 7 rights. The NLRB acknowledged that it remains important for employees to have the ability to confer with coworkers. However, the Board also recognized that requiring confidentiality during a workplace investigation protects employee privacy and allows for more effective investigations. In this way, the NLRB’s decision in Apogee Retail brings it into alignment with the Equal Employment Opportunity Commission’s (EEOC) position on confidentiality during workplace investigations. The EEOC has maintained that confidentiality requirements, specifically in harassment investigations, encourages victims and witnesses to more readily report misconduct.

Employers may restrict union insignia at work.

In another employer-friendly, late-December ruling, the NLRB issued a ruling in Wal-Mart Stores Inc. on December 23, 2019, finding that employers may restrict employees from wearing union buttons, pins and other union insignia on the job in areas of stores where employees interact with customers. In the case, the NLRB considered a Wal-Mart rule allowing employees to wear only “small, non-distracting” union insignia no larger than an employee nametag but that did not outright ban the wearing of union insignia. The Board found the rule to be lawful, determining that Wal-Mart’s interest in maintaining workplace standards outweighed any potentially harmful impacts on employees’ unionizing rights. Nevertheless, employers should exercise caution before implementing such a workplace rule in all circumstances. In a different opinion issued on December 16, 2019, the NLRB ruled that an identical policy applied to employees in areas where no customers were present remained unlawful.

Labor arbitration awards are entitled to deference.

In a case involving United Parcel Service, Inc., the NLRB issued a ruling on December 23, 2019, reinstating a test whereby the Board will more readily defer to a labor arbitrator’s decision. In circumstances where an arbitration proceeding appears to have been conducted fairly and without irregularities, the parties previously had agreed to be bound by the result of such an arbitration proceeding, and the arbitrator issued a decision “not clearly repugnant” to the NLRA, the Board will defer to the arbitrator’s resolution of a particular grievance.

In a 2014 decision called Babcock & Wilcox Construction Co., the NLRB had reduced the likelihood of deference to an arbitration award. However, in the United Parcel Service case, the Board expressed concerns with the Babcock standard, indicating that it risks interfering with parties’ contractual rights and encourages the re-litigation of grievances. Now, as before Babcock, a party may still argue against deference to an arbitration award, but it has the burden “to demonstrate defects in the arbitral process or award.” Importantly, the NLRB announced that this new standard will apply retroactively to all pending cases.

EEOC rescinds policy against binding arbitration.

Finally, on December 16, 2019, in a matter outside of the NLRB, the EEOC voted 2-1 to rescind its previous position that binding arbitration agreements clash with the antidiscrimination laws enforced by the EEOC. In 1997, the EEOC issued a policy statement stating that the use of mandatory arbitration agreements as a condition of employment might harm both “the individual civil rights claimant and the public interest in eradicating discrimination.”

In recent years, binding arbitration agreements have been criticized as a method of hiding harassment or discrimination and keeping disputes regarding such conduct away from courts. However, the Supreme Court has issued a number of rulings determining that agreements to arbitrate employment-related disputes are enforceable under the Federal Arbitration Act. As a result, the EEOC’s new decision indicated that its 1997 policy statement “does not reflect current law” and should not be relied on by EEOC staff.

With the EEOC now finding that mandatory arbitration agreements between employers and employees do not automatically conflict with federal antidiscrimination laws, employers may wish to take the opportunity to consider whether they may benefit from the use of such agreements with their own employees. There are many pros and cons as to binding arbitration agreements, all of which should be carefully considered with regard to each individual workplace.