by Jennifer Shorb Hagerman

Resolving several years of conflicting directives from the National Labor Relations Board (NLRB) and the Equal Opportunity Commission regarding the confidentiality of workplace investigations, the NLRB recently held that employers’ rules requiring that employees maintain confidentiality during an ongoing investigation are lawful.

The NLRB’s December 2019 decision in Apogee Retail, LLC reversed its 2015 decision in Banner Estrella Medical Center, which required a case-by-case assessment of whether the employer could require confidentiality in a specific workplace investigation. In Apogee Retail, the NLRB noted the important interests of employers in providing, and employees being assured of, confidentiality during an ongoing investigation, including (1) responding promptly to allegations of misconduct, (2) protecting employees’ privacy, (3) protecting employees from retaliation, and (4) ensuring the overall integrity of an investigation. The NLRB recognized that rules requiring investigation-related confidentiality may adversely impact the exercise of employees’ rights under Section 7 of the National Labor Relations Act (which generally gives employees the right to discuss the terms and conditions of their employment and to engage in protected concerted activities), but found that any such adverse impact is “outweighed by the substantial and important justifications” associated with maintaining confidentiality rules during ongoing investigations.

Unlike rules that require confidentiality during ongoing investigations only, however, the NLRB held that “investigative confidentiality rules that are not limited on their face to open investigations” will be subject to individualized scrutiny as to whether the adverse impact on employees’ rights under Section 7 is outweighed by other legitimate factors.

In light of the NLRB’s decision in Apogee Retail, we recommend that employers review their policies regarding workplace investigations to ensure compliance. While a rule that requires confidentiality only during the pendency of an investigation presents the least risk, employers may wish to consider requiring confidentiality after an investigation has concluded, depending on the nature of the employer’s business and the particular type of investigation.

by Lisa A. Krupicka

The Family and Medical Leave Act (“FMLA”) permits employees to take leave on an intermittent or reduced schedule basis “when medically necessary” due to the serious health condition of a covered family member or the employee, the serious injury or illness of a covered service member, or on account of a qualifying military exigency. Intermittent leave is leave taken in separate blocks of time for a single qualifying reason.  Examples of intermittent FMLA leave include time off to receive periodic treatments like dialysis or chemotherapy, leave taken for medical appointments, or leave for morning sickness or pre-natal visits for pregnant employees.  Often these absences are predictable and can be planned for.  Employees are required to make a “reasonable effort” to schedule the treatment so as not to disrupt unduly the employer’s operations.

The most problematic type of intermittent leave for employers, and the one that is most susceptible to abuse, is leave taken on account of a chronic serious health condition.  A chronic serious health condition is a health condition which:

  1. Requires periodic visits to a healthcare provider or nurse at least twice a year;
  2. Continues over an extended period of time (including recurring episodes of a single underlying condition); and
  3. May cause episodic rather than a continuing period of incapacity, such as epilepsy, diabetes or asthma.

A typical example is Brenda, a receptionist at Acme Company with an asthma diagnosis.  Brenda has submitted a medical certification form that states that she suffers from a chronic serious health condition, asthma, and that she may need to miss work on days on which she experiences a flare-up of her condition. So if Brenda wakes up on a Tuesday morning and decides she is experiencing a flare-up, she can just call in to say she must miss work for an FMLA-qualifying reason.  She does not have to go to the doctor and Acme cannot require that she provide a doctor’s note for this specific day of missed work.  Brenda can call in like this for as long as she has FMLA leave available, and if Acme is tracking leave on a rolling year basis, this often means she will have at least one or two days available in virtual perpetuity.

After about a year of this arrangement, Acme gets frustrated because it needs someone at the reception desk to greet visitors every business day, and when Brenda calls off, it must ask another employee to forgo his regular job duties to sit at the reception desk.  One seemingly logical solution would be to move Brenda to another administrative position with job duties that better accommodate her unpredictable absences.  Not so fast!  The FMLA permits an employee to be transferred to an alternative position only when she needs intermittent leave that is foreseeable for planned medical treatment (which seems like a situation in which a transfer would be least needed, but no one asked me).

So what can Acme do?  Not much.  It can make sure that Brenda goes to her healthcare provider at least twice a year by requiring her healthcare provider to re-certify her condition every six months. Acme can ask for re-certification on a more frequent basis due to “changed circumstances.”  Changed circumstances can include Brenda’s missing more time for a single asthma flare-up than her doctor estimated on the medical certification, if Brenda tends to have asthma flare-ups only on Fridays and Mondays, or if Acme hears from a co-worker that Brenda’s Facebook page has a picture of her wind-surfing on a day that she supposedly could not work because of her asthma.  Acme can even submit a record of Brenda’s absences to her healthcare provider and ask if the need for leave is consistent with such a pattern.  Realistically, however, it will be rare to find a healthcare provider who would refuse to re-certify her patient’s need for intermittent leave regardless of any “changed circumstances.”

If you are concerned about properly managing leave for an employee with a chronic serious health condition, or just want to complain about it, we are here to help!

by Gary S. Peeples

In a December 2019 decision, the National Labor Relations Board (NLRB) held that an employer does not violate Section 7 of the National Labor Relations Act by restricting the use of company-owned email systems to business uses.  The case—Caesars Entertainment—involved a challenge by a union to certain provisions contained in an employee handbook.  In particular, the union argued that the employer’s prohibition on non-business uses of the company-owned email system violated Section 7, which generally protects employees’ ability to engage in protected, concerted activities.

The NLRB, during the Obama years, held in a case (Purple Communications) that employees have a Section 7 right to use employer-owned computer equipment (including email systems) for non-work purposes (i.e., union organizing).  That decision had been widely criticized since it was issued in 2014.  Indeed, the current NLRB had signaled a willingness to overrule Purple Communications if it was presented with a clear opportunity to do so.

The clear opportunity to overrule Purple Communications came in the form of Caesars Entertainment.  Notably, the NLRB’s decision in Purple Communications itself involved overruling an earlier employer-friendly NLRB decision (Register Guard) involving computer-access and use restrictions issued during the George W. Bush administration.  Indeed, the NLRB, for much of its history, has often shifted its position on various legal issues depending on the party affiliation of the President.

What is the significance of Caesars Entertainment?  Most notably, employers are (for now) permitted under Section 7 to promulgate and enforce rules restricting employees’ use of employer-owned email systems (and other employer-owned electronic equipment) to work-related uses.  The NLRB’s holding in Caesars Entertainment announces the new rule quite clearly: “[E]mployees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.”  There is a carve-out for those “rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another,” but the carve-out by its terms does not apply to the vast majority of employers.  And, from the 30,000-foot perspective, the NLRB’s decision in Caesars Entertainment shows that the current version of the NLRB is willing to overrule several Obama-era NLRB decisions that have proven to be unpopular with employers.