In a recent turn of events, the National Labor Relations Board (the “Board”) overturned a prior ruling and upheld an employer’s policy preserving the right to monitor employee use of company devices and reserve the right to search personal property, such as cars, while on company premises.
In 2017, an administrative law judge (“ALJ”) found that a workplace rule allowing an employer to search or monitor employees’ personal property on company premises, including their vehicles, was facially unlawful. The ALJ concluded that such a policy could restrict an employee’s right to unionize for fear that an employer would use such searches to eavesdrop or uncover union organizing materials. However, the Board dismissed such notion, recognizing there was nothing in the employer’s policy to suggest that such searches would actually take place, let alone occur regularly. “We do not believe that the remote prospect that a search might someday occur would have any material impact on the exercise of [self-organization] rights.” The Decision, Verizon New York, Inc. (June 24, 2020) 369 NLRB No 108, can be found here.
The decision is one of a series since the Board revised the standard for analyzing the lawfulness of facially neutral employer rules and policies.
Under the new standard, the Board first determines whether a challenged rule, reasonably interpreted from the employee’s perspective, would potentially interfere with the exercise of rights protected under Section 7 of the NLRA. If not, then the rule would stand as lawful. However, if the rule could reasonably be read to restrict Section 7 activity, then the Board goes on to evaluate two factors: (1) the nature and extent of the potential impact on NLRA rights, and (2) legitimate justifications associated with the rule. Because the new standard applied retroactively, the Board analyzed the lawfulness of the rule under the new standard on appeal.
Applying this analytical framework, the Board reversed the ALJ’s ruling and held the rule was lawful. In reaching this conclusion, the Board specifically rejected the ALJ’s “unsupported speculation” that a policy that “merely ‘reserves the right’” to search employees’ personal property would have any material impact on the exercise of Section 7 rights. Even assuming the rule could be reasonably interpreted to interfere with protected rights, the Board found that any minimal impact on Section 7 activity would be far outweighed by the employer’s legitimate interest in maintaining a safe workplace. Because the employer’s legitimate interests outweighed any potential adverse impact on Section 7 rights, the Board found the rule was lawful.
Similarly, in May, the Board reviewed another employer’s rule prohibiting workers from bringing cell phones and other “personal items” into work areas. Previously, an ALJ ruled such a rule a violation of the National Labor Relations Act because it prevented workers from recording audio of labor violations.
But using the new standard, the Board reversed the ALJ finding the ban reasonable because phones pose a “unique distraction” and a safety risk on production, outweighing any concerns about workers’ rights, the board said.
- Employers may lawfully monitor their computers and email systems for legitimate management reasons. Both the Board and the ALJ upheld employer policies permitting employers to monitor employees’ use of company communications devices, computer systems, and networks.
- Employers may prohibit employees from bringing cell phones and other personal items into the work area if there are legitimate concerns about safety risks.
- Employers may search employees’ personal property on its premises. The Board found that the legal liability employers may face in the event of a workplace injury and the economic consequences of theft compelling.
- Despite finding such policies lawful, employers should use discretion when deciding whether to actually engage in any search of employee personal property to ensure there is a legitimate business reason for such a search.
While more employer-friendly decisions from the Board are encouraging, companies must still proceed cautiously before revamping their workplace rules. Members of the National Labor Relations Board are appointed to five (5) year terms by the President, with Senate consent, the term of one (1) Member expiring each year. Presently, there are two (2) vacancies and, more importantly, a Presidential election looming. The current Republican-controlled Board has already issued several precedent-shifting decisions, and there is no reason to believe that a Democratic-controlled Board would not do the same in the current hyper-partisan climate.