“So, Meyer thinks his organized-labor blog posts go over like wet farts, does he? Fam, let’s announce one — no, TWO HUGE DECISIONS in one day, and we’ll see how he gets around writing about them. That blogger nerd!” — National Labor Relations Board Chairman John F. Ring, probably.
Alright, Chairman Ring (probably), you got me. Clicks be-damned, I do need to inform my readers about yesterday’s Board bombshells. (But, I am going to quote a lot from your press releases and I’m borrowing the titles).
“Board Approves Greater Confidentiality in Workplace Investigations”
Back in the day, when we conducted workplace investigations, companies could insist that interviewees not discuss the substance of the investigation with others. I’m pretty sure that’s what the Go-Go’s had in mind when they wrote this song in 1981.
That changed in 2015, when the Board decided the Banner Estrella Medical Center case. That jawn required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality. In some ways, Banner Estrella was good, but mostly because it led to a lot of work for me revising employee handbooks. My paying clients weren’t as happy about it.
However, yesterday, that Board announced here that the Banner Estrella decision was a wicked pissah (in a sarcastic way) because it “improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent.”
Taking its cue from the EEOC, the Board “determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.”
The decision, which can be found here, is a win-win. Employers can insist that employees maintain the confidentiality of workplace investigations, and I can update more handbooks. Now, that’s a wicked pissah (in a good way)!
“Board Restores Employers’ Right to Restrict Use of Email”
How about some Led Zeppelin for this one. Yes, Jimmy Page was the inspiration for Microsoft Outlook.
(When Communication Breakdown ended, YouTube automatically queued up the official video for Black Betty by Ram Jam. First, who knew such a video even existed? Second, I dare you to watch it and start reading the comments. You will get nothing else done today. Wait, where was I? Oh, right.)
Back in 2014, in a case called Purple Communications, Inc., the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act. In plain English, your employees could use your email to talk about forming a union.
Well, that’s kinda messed me up. It’s your computer system, right?
That decision from the ‘Obama’-Board didn’t go over so well with the current Board either.
Indeed, we knew that change was coming. In 2018, the Board invited briefs on this issue. And, yesterday, the Board (here) reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis.
Employees must have “adequate avenues of communication” to engage in protected concerted activity. But, that doesn’t require employers to make work email available to promote these Section 7 rights. Instead, if your business wants to have rules that require employees to use company email only for company business, you can.
Ok, I’m getting the shakes. So, no more organized labor posts for a while. Back to employment law tomorrow. More Heart today.
You gonna burn, burn, burn, burn, burn to the wick
Oooo, Barracuda, oh yeah