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The National Labor Relations Board Has Been Busy! Three Things You Need to Know Even if Your Company

The changes below matter to you even if your workplace is not “unionized,” but is covered by the National Labor Relations Act (“NLRA”). Check here to see whether your business is covered – and many are! (Remember: information is power. Learn what laws apply to your company – the first step in achieving compliance and peace of mind!)

Broader Confidentiality Protections for Investigations Restored

The scope of confidentiality during internal investigations is a source of concern for both involved employees and those responsible for running a solid investigation. Employers want to be sure they get as close to the truth as they can, while complainants and co-worker witnesses worry about how far what they say will be “spread around.”

For many years, companies could insist that interviewees not discuss the substance of an investigation with others. In 2015, the National Labor Relations Board (NLRB) decided the Banner Estrella Medical Center case, which required employers to prove on a case-by-case basis that the integrity of an investigation would be compromised without confidentiality. The Board viewed confidentiality rules as unduly interfering with employees’ rights to engage in NLRA Section 7 concerted activity.

However, In December 2019, the NLRB announced that the Banner Estrella decision improperly placed the burden on an employer to determine whether its interest in preserving the integrity of an investigation outweighed employee Section 7 rights.

The NLRB “determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.” Thus, employers can insist that employees maintain the confidentiality of workplace investigations while the investigations are in progress. Moreover, even post-investigation confidentiality can be required if the employer can demonstrate “one or more legitimate justifications” for the restriction.

Employers, whether unionized or not, should review their confidentiality policies surrounding internal investigations to assess whether the confidentiality aspect should be updated.

NLRB Restores Employers’ Right to Restrict Use of Email

In 2014, the NLRB 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 NLRA. Accordingly, employees could use company email to talk about forming a union.

In December 2019, the Board re-established the right of employers to restrict employee use of company email systems if that is done on a nondiscriminatory basis. This rule also applies to other technology resources, such as company smartphones and social media.

While employees must have “adequate avenues of communication” through which to engage in protected concerted activity, that does not require employers to make work email available to promote those activities. Assuming the employees do have other reasonable means to communicate, if a business wants to have rules that require employees to use company email and other technology resources only for company business, that can now be done again.

To preserve the right to preclude organizing activity using company systems, employers should be careful not to allow company resources to be used for some non-business purposes, but not for union-organizing activities.

Employers should review their employee e-mail usage policies to take advantage of the NLRB’s reversal of position.

The NLRB Narrows Test for Who Qualifies as a Joint Employer

First question: why does it matter if two companies are “joint employers” for NLRA purposes? If employees are represented by a union, the joint employers must participate in collective bargaining over the terms and conditions of employment. Picketing directed at a joint employer that would otherwise be secondary and unlawful is primary and lawful. Each joint employer may be found jointly and severally liable for the other’s unfair labor practices. This could end badly for you, even if you choose your business affiliates with care.

In a 2015 decision, the NLRB unsettled the law by holding that a company could be deemed a joint employer if its control over the essential terms and conditions of another business’s employees was merely indirect, limited and routine, or contractually reserved but never exercised. That ruling created a great deal of uncertainty and exposed companies such as franchisors or parent companies to lawsuits based on alleged “indirect” control.

Under the new rule, which takes effect on April 27, 2020, a joint employer relationship involves one business that possesses and exercises substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees and which meaningfully affects another employer’s employees.

Wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction are the “essential terms and conditions of employment.”

“Substantial direct and immediate control” means regular or continuous consequential effect on an essential term or condition of employment of another employer’s employees. Such control is not “substantial” if it is only exercised on a sporadic, isolated, or de minimis basis.

While possession of indirect control or contractually reserved control over workers (such as retaining the right to exercise control over workers at a later date) can be a factor in determining joint employer status, evidence showing that a company actually exercised its authority or control is required to meet the new standard.

For a shorter summary straight from the NLRB, take a look at the fact sheet accompanying its release of the new rule.

NOTE: This blog post does not constitute any form of legal advice, nor does it create an attorney-client relationship. This summary is provided merely for general informational purposes. Always consult qualified legal counsel concerning the application of the law to your particular circumstances.


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