Tag: confidentiality

2020 NLRB

NLRB 2020 (Webinar Recap)

On January 22, 2020, I presented a complimentary webinar called “NLRB 2020: Updates for All Private Sector Employers”. For those who couldn’t attend the live webinar, we’re happy to make it available for you to watch at your convenience.

In the webinar, we discuss:

  • Employee Policies
  • Email Use
  • Investigatory Confidentiality
  • Representation Election Rule Changes
  • Union Issues

The National Labor Relations Board has a significant impact on private companies throughout the United States. The NLRB not only oversees union elections and management-labor relations, but also enforces employee rights to engage in concerted activities for their mutual aid and protection. Recently, the Board has taken many steps to reverse pro-labor rulings under the prior administration in Washington. We summarize many of those in this webinar.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “NLRB 2020”

Whether you currently have unionized employees or not, recent NLRB actions could affect your company. Fortunately, it’s mostly good news for employers.

After several years of restrictive enforcement of the National Labor Relations Act, the NLRB is now reiterating private companies’ rights to run their business. While employees still enjoy many protections, employers have more leeway in several areas that would have been problematic before.

If you are concerned about potential organizing activity, be sure to learn about the new NLRB election rules. These will favor employers compared to the current rules. But the procedures don’t change until April 2020, leaving open the possibility that unions will hurry to pursue organizing campaigns and elections before then.

Plus, if you already have unionized employees, there are also updates that affect you more directly. Recent NLRB decisions restore earlier longstanding views on deferral to arbitration awards, dues checkoff, and union insignias.

We also comment on the current composition of the NLRB Board and how it could change, along with what that could mean for employers.

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Confidentiality in Workplace Investigations

NLRB Restores Confidentiality in Workplace Investigations

A December 16, 2019 NLRB decision reinstated employers’ discretion to maintain confidentiality in workplace investigations. In 2015 the federal Labor Board had found that employees’ rights to communicate with each other generally trumped company secrecy in this area. The new ruling allows investigatory confidentiality to be the default, rather than the exception.

Previous Standard

In 2015, an Obama-era NLRB panel with a Democrat majority held companies to the burden of demonstrating a specific need for confidentiality regarding a particular investigation. In other words, the default was the employers could not force employees to keep quiet about an ongoing internal inquiry.

Under the Banner Estrella Medical Center ruling, employers could only require confidentiality upon affirmative evidence that:

  • witnesses need protection;
  • evidence is in danger of destruction;
  • testimony is in danger of fabrication; or
  • there is a need to prevent a cover-up.

In that decision, the Board found that, absent these factors, employees’ rights under Section 7 of the National Labor Relations Act outweighed company interests in preserving the integrity of an investigation. Section 7 of the NLRA protects employees who engage in concerted activity for their mutual aid and protection regarding terms and conditions of employment.

Concern with Lack of Confidentiality

A strenuous critique of the Banner Estrella Medical Center decision was that it was inconsistent with EEOC guidance encouraging confidentiality in workplace investigations. Specifically including investigations of sexual harassment, the EEOC has long emphasized that employer procedures for resolving internal complaints “should ensure confidentiality as much as possible. . . .”

Over the past few years, the EEOC and NLRB have attempted to reconcile their inconsistent stances. The new NLRB position eliminates the conflict between these federal agencies.

Changing the Presumption (Back)

The NLRB’s 3-1 decision in a case involving Unique Thrift Store once again permits employers to ask their employees to keep investigations confidential. They can do so as the default, without first evaluating prescribed criteria.

Unique Thrift Store maintained the following work rules for employees:

  • “Reporting persons and those who are interviewed are expected to maintain confidentiality regarding these investigations.”
  • “The following list . . . are examples of behaviors that . . . may lead to disciplinary action, up to and including termination . . . . Refusing to courteously cooperate in any company investigation. This includes, but is not limited to, unauthorized discussion of investigation or interview with other team members . . . .”

The Board majority overruled the Banner Estrella standard, in part, for its failure “to consider the importance of confidentiality assurances to both employers and employees during an ongoing investigation.”

Open Question on Investigatory Confidentiality Rules

The NLRB’s 2019 Unique Thrift Store decision didn’t actually determine whether the above rules are lawful. The Board withheld ultimate judgment in that regard because the rules themselves weren’t clearly limited to the duration of an investigation. In other words, they arguably required employees to keep quiet even after the company had completed its investigation.

The Board did not feel it had enough information to evaluate whether Unique Thrift Store had sufficient justification for requiring post-investigation confidentiality. So, it sent the case back down for further proceedings regarding that question.

Impact on Employers

Under this new ruling, companies can go back to directing employees to maintain confidentiality during an investigation. They can generally implement and enforce written rules to that effect. But they should be careful in the wording of such rules and directives. Requiring employees to stay silent even after an investigation has concluded may be more problematic. In that situation, your company should evaluate the specific circumstances and, ideally, consult with an experienced labor attorney.

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Click for the full decision in:

Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019)

Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB 1108 (2015)

Social Media Policies

Social Media Policies Still Uncertain for Employers

In August 2019, the National Labor Relations Board published an advice memorandum about social media policies. The September 5, 2018 memo addressed particular provisions of written policies of CVS, the retail drug store chain. Although aimed at one employer’s specific policies, the advice memo provides helpful guidance for other companies. But, it doesn’t create absolute certainty on all employee social media issues.

Legal Backdrop – NLRA

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA). The NLRA allows private-sector employees to form unions. It also gives employees the right to engage in other activities for their mutual protection. Fundamentally, that means protection from their employers. This includes rights to communicate regarding terms and conditions of employment–things like wages, hours, and work conditions. These are known as “Section 7” rights, referring to the applicable NLRA provision.

“Social media” emerged as a technological and cultural phenomenon in the last part of the 2000s decade. Employers soon wondered how the new communication methods would affect the workplace. They started drafting policies and guidelines for employees–what they could or (more often) couldn’t do online.

Perhaps surprisingly, the NLRB stepped in and started scrutinizing social media policies. The agency began finding portions of the policies unlawful under the NLRA. It said that the employers’ new prohibitions would arguably deter employees from engaging in communications about work that they had a right to participate in under federal law.

After a political shift in Washington following the 2016 election, the NLRB started to change its tune. In a December 2017 decision involving The Boeing Company, the NLRB announced a less restrictive view on employer policies, including social media parameters.

Current Social Media Policy Standard

The 2017 Boeing case established a new test for judging whether employee policies violate the NLRA.

If a rule is “facially-neutral,” but could be read to violate the NLRA, the NLRB will weigh two considerations:

  1. The nature and extent of the potential impact on Section 7 rights; and
  2. Legitimate business justifications associated with the rule’s requirements.

The NLRB observed that this standard creates three possible categories of such rules.

Category 1 Rules

These are rules that are lawful for employers to maintain as a general matter, either because:

(a) The rule does not prohibit or interfere with the exercise of Section 7 rights; or

(b) Even though the rule has a reasonable tendency to interfere with Section 7 rights, the potential adverse impact on those protected rights is outweighed by employer justifications associated with the rule.

This includes rules requiring “harmonious relationships” and “civility” in the workplace.

Category 2 Rules

These are rules that require individualized scrutiny in the specific case at hand. The NLRB will look at relevant circumstances to balance the impact on Section 7 rights against any legitimate business justifications.

Category 3 Rules

These are unlawful rules where the Section 7 implications cannot be justified by business concerns.

Prohibitions on employees discussing wages and benefits with each other fall into this category.

Lawful Social Media Rules

Here are some of the types of rules that the NLRB’s Division of Advice deemed acceptable in CVS’s situation:

  • Employees who speak on social media about the company “in any way” must make it clear they are a company employee but are not speaking on behalf of the company.
  • Use of any company or brand name or logo as part of a social media account requires prior company approval.
  • Employees may not post anything “discriminatory, harassing, bullying, threatening, defamatory, or unlawful.”
  • Taking or sharing photos from non-public areas or internal meetings is prohibited.
  • Employees may not post “content, images or photos” that they don’t “have the right to use.”
  • Internal communications and information must be kept confidential.
  • Employees must use a disclaimer if they speak about the company on social media.
  • Employees cannot give professional recommendations or references regarding current or former company employees through social media posts.

In the past, the NLRB likely would have found many of these rules to violate the NLRA. While the Division of Advice’s “blessing” of these rules is a good sign for employers, the memo does not guarantee how the NLRB would ultimately rule on any particular rules. The specific words and context of social media policies can change the analysis. As can the composition of the NLRB Board.

Unlawful Social Media Rules

The NLRB advice memo ruled that at least portions of the following types of rules were unlawful as used by CVS:

  • Employees may not disclose “employee information” through social media.
  • Employees who mention their work for the company on social media must disclose their real name and job title.

The Division of Advice stated that the rule about employee information could be problematic because employers cannot prohibit employees from sharing “employee contact information and other non-confidential employment-related information.”

It indicated that the rule requiring employees to self-identify goes against NLRB precedent. Traditionally, employees have the right to engage in collective action without identifying themselves. But, the Division of Advice noted, the employer can otherwise avoid some of its legitimate concerns by requiring even unidentified employees to acknowledge their employment status and disclaim that they are not speaking on behalf of the company.

The full NLRB advice memo regarding the CVS social media policies is available here.

Reviewing Your Social Media Policy

The pendulum has definitely swung back in employers’ favor on this subject. Accordingly, this might be the right time to review your social media policies, assuming your company already has one. If you don’t have one, but want one, then these latest developments can help guide you. But, in either case, most employers shouldn’t rush to impose the most restrictive policy possible without careful consideration of the implications.

First, you should evaluate what employee social media issues your company has had in the past. If none, then your existing policy (or even the absence of a policy) might be sending a sufficient message.

Second, does the nature of your business generate specific impetus for different social media policies than what you currently have? Relevant factors include the nature of your workforce, the prevalence of highly confidential information, the use of social media for conducting positive business activities, etc.

Third, how will your employees respond? Most people by now are accustomed to using social media in their daily lives. Any efforts to curtail their activities could make employees nervous, if not angry. So make sure the justification for greater restrictions justifies the potential backlash.

Finally, if you do want to revise your social media policies, seek legal advice. You can’t simply rely on what the NLRB’s Division of Advice said was okay for CVS. This is an area where every word matters. And, even then, some risk remains. You should have a clear understanding of these risks and attempt to mitigate them in advance.

 

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