In another victory for employers and a further retreat from Obama-era policy, the National Labor Relations Board (“NLRB” or the “Board”) recently ruled that employers do not violate the National Labor Relations Act (“NLRA” or the “Act”) by maintaining a policy that allows employers to monitor employees on the job by searching employees’ personal property on company premises and/or company networks and devices.
In a June 24, 2020 decision – Verizon Wireless, 369 NLRB No. 108 (2020) – the NLRB reversed an Administrative Law Judge’s (“ALJ”) ruling that Verizon Wireless and its related entities’ (collectively, “Verizon”) policy permitting company searches of workers’ personal property violated Section 8(a)(1) of the Act by infringing upon employees’ rights to engage in concerted activity for mutual aid or protection under Section 7 of the Act. The Board also upheld the ALJ’s ruling that another portion of Verizon’s policy permitting company monitoring of company computers and devices did not violate the Act.
Employer searches of employees’ personal property
In analyzing the portion of Verizon’s policy that permits searches of employees’ personal property, the NLRB applied the Boeing test for analyzing facially neutral workplace rules. Under Boeing, the Board must first determine if the challenged rule, reasonably interpreted, would potentially interfere with Section 7 rights under the NLRA. If not, the rule is lawful and no further analysis is needed. If the rule could be reasonably interpreted to interfere with Section 7 rights, the Board must balance: (1) the nature and extent of the potential impact on NLRA rights; and (2) legitimate justifications associated with the rule. See Boeing Co., 365 NLRB No. 154, slip op. at 3-5 (2017).
The ALJ had previously found that the policy’s portion permitting monitoring of personal property was unlawful under the “reasonably construe” standard set out in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Under Lutheran Heritage, an employer violated the Act if it maintained a work rule that employees would reasonably construe to chill their exercise of their rights under Section 7. Following the ALJ’s ruling, the NLRB decided Boeing, which overruled Lutheran Heritage’s “reasonably construe” standard.
The Board reversed the ALJ’s holding that Verizon’s rule stating it may search or monitor workers’ personal property (including vehicles) on company premises violated the Act under the Lutheran Heritage standard. Under the first step of the Boeing test, the Board determined that a reasonable employee who “does not view every employer policy through the prism of the NLRA” would not refrain from engaging in protected conduct under the Act merely because evidence of such activity could be discovered through an employer search of the employee’s personal property. Verizon Wireless, 369 NLRB No. 108, slip op. at 5 (quoting LA Specialty Produce, 368 NLRB No. 93, slip op. at 2 (2019)). Rather, the Board determined that a reasonable employee would interpret the policy consistent with its stated purpose: protecting company assets, providing excellent service, ensuring a safe workplace, and investigating improper use or access. The Board also concluded that the charging parties’ fears about company searches were too speculative to support a violation of the Act.
Even if a reasonable employee would interpret the policy to interfere with Section 7 rights, the Board concluded that the policy would still be permissible under Boeing because the employer’s legitimate interest in conducting searches – to prevent theft or other losses and to ensure a safe workplace – would “far outweigh” any minimal impact on employees’ rights under the Act. Verizon Wireless, 369 NLRB No. 108, slip op. at 5.
Employer searches of company networks and devices
The Board also affirmed the ALJ’s holding that the portion of Verizon’s policy permitting company monitoring of company computers and devices did not violate the Act. The ALJ reached her conclusion by applying Purple Communications, Inc., 361 NLRB 1050 (2014), which was subsequently overruled by Caesers Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019). The Board, however, determined that Caesers Entertainment did not disturb Purple Communications’ holding that employers may lawfully monitor computer and email systems for a legitimate management reason. Verizon Wireless, 369 NLRB No. 108, slip op. at 2. As a result, the Board affirmed the the ALJ’s ruling on monitoring of computer networks and devices.
Verizon is another pro-employer ruling by the Board. Employers should contact legal counsel about updating their employee handbooks to take advantage of the Board’s continued expansion of permissible facially neutral workplace rules.