Employers May Require Confidentiality During Ongoing Disciplinary Investigations and Prohibit Use of Company Equipment for Nonbusiness Purposes

By Gerard Morales

Overruling Obama-era precedent, on December 17 the National Labor Relations Board (Board) published two decisions that will significantly affect all employers.

In a decision involving a Las Vegas employer, the Board held that employees do not have a statutory right to use the employer’s email system (or other employer equipment) for union or other concerted activities protected by the National Labor Relations Act (Act). However, the Board will recognize an exception to this principle in limited circumstances, such as when the use of such equipment is the only reasonable means for employees to communicate among themselves. ¹

In another decision, the Board held that employers do not commit unfair labor practices by requiring employees to maintain confidentiality with respect to ONGOING disciplinary workplace investigations.²  This decision overrules precedent that permitted employers to require confidentiality only when it was shown that such a requirement was necessary in order to maintain the integrity of the investigation. Given the frequency of workplace sexual harassment (and other types of) investigations, this new decision of the Board should be noted by all employers in their review of workplace rules requiring confidentiality and nondisclosure.