Labor Board Approves Rules Allowing Company Search of Employee Vehicles and Employer Provided Electronic Devices
In Verizon New York, Inc. (Verizon), the National Labor Relations Board (Board) recently found that a work rule reserving the right for the company to monitor and/or search personal property, and a rule permitting the company to monitor use of company issued electronic devices lawful under the National Labor Relations Act (NLRA). In partly reversing an Administrative Law Judge’s decision, the Board applied its revised standards for determining whether work rules violate the NLRA.
Personal Property Search Rule
The company maintained a rule which reserved the right for the company to monitor or search personal property on company premises, including employee vehicles. The purpose of this rule was to ensure a safe workplace and allow the company to investigate improper use or access. The ALJ, using the then existing standard under Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004), found that the rule was unlawful because it would reasonably be construed to permit unlawful search and surveillance of Section 7 activities including union organizing, maintenance of authorization cards, organizing literature, evidence of unfair labor practices, or protected conversations employees may engage in in their cars. In reversing the ALJ, the Board applied its revised work rule standard announced in Boeing Co., 365 NLRB No. 154 (2017), which overturned Lutheran Heritage with retroactive application.
Under Boeing, the Board first determines whether a challenged rule, if reasonably interpreted, would potentially interfere with the exercise of NLRA rights. If it does not, then the Board will find the rule lawful on its face. However, if the rule would reasonably be read to restrict Section 7 rights, the Board will employ a balancing test weighing the potential impact on NLRA rights and the employer’s legitimate business justification associated with the rule.
In this case, the Board found the personal property rule lawful, reasoning that a reasonable employee does not “view every employer policy through the prism of the NLRA” and would understand the rule was meant to secure a safe workplace and allow the company to investigate improper use or access. The Board stated the ALJ’s finding that the rule would reasonably cause employees to refrain from protected activities was mere speculation. Further, the Board found that even if the rule could potentially interfere with rights afforded under the Act, the minimum impact on protected activities would be far outweighed by the legitimate interest employers have in conducting searches when necessary for loss prevention and workplace safety.
Company Device Rule
The company also maintained a rule which stated the employer monitors employees use of company issued devices, computer systems and networks. The ALJ, using the then existing test under Purple Communications, Inc., 361 NLRB 1050 (2014) found that the employer could lawfully monitor computer and email systems for legitimate business reasons. The Board noted that while Purple Communications was overruled by the Board’s decision in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019), regarding the employer’s right to restrict nonbusiness related access to its email system, the principle that employers can monitor its computer system was not disturbed. Therefore, the Board upheld the ALJ’s finding that the rule was lawful.
While the rules permitting the search of personal property and company electronic devices and networks were found to be lawful in this case, employers must be cognizant of the fact that the Board’s analysis of work rules are extremely fact specific requiring each rule to be reviewed on a case by case basis. Employers should work carefully with counsel to ensure their rules meet their business objectives but also past muster under the Board’s frequently changing standards on workplace rules.