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NLRB OKs Emergency COVID-19 Work Rule Changes and Greenlights Employee Property Searches

July 22, 2020

The National Labor Relations Board (NLRB) recently made several important announcements that impact employers. It released a batch of advice memos detailing advisory attorneys’ answers to discrete COVID-19-related questions raised by field officials. It also ruled on employer rights to search employee property. The NLRB’s advice included:

1. Employers may alter job conditions in an emergency without union approval if the employer agrees to bargain over the change later.

The guidance letter, directed to Mercy Health General in Detroit, Michigan, advised that the employer did not have a duty to bargain with the employees’ union over changes to its remote working and attendance policies.

The NLRB’s general counsel said an employer should be permitted to, at least initially, act unilaterally during emergencies such as COVID-19 if the actions are reasonably related to the emergency situation. The employer, though, must negotiate the decision and its implications within a reasonable time after the changes are in place. Thus, the NLRB appears to be prepared to let employers allow certain unilateral job changes without collective bargaining if the:

  • Changes are related to COVID-19
  • Employer agrees to bargain over the change within a reasonable time

2. An employer did not violate the National Labor Relations Act (NLRA) by refusing to admit union representatives to a job site because of COVID-19.

The general counsel would not choose between two equally plausible interpretations of the union contract. It was not clear that the union’s demand for immediate unrestricted access was reasonable in light of the current pandemic. Moreover, the union did not seek to bargain over the reasonableness of the employer’s decision. As such, the general counsel did not believe the union properly raised the question of whether the employer’s decision to bar the union from the premises was reasonable.

3. A retaliation case should not be brought when an employer was accused of firing an employee who asked to work from home during the pandemic.

The letter, sent to the Fort Worth, Texas, office, said the worker did not trigger retaliation protections by texting a colleague about safety concerns on a personal phone. Even if the colleague was not a supervisor and was protected by the NLRA, the text likely would not have been protected because the:

  • Employer was not aware of the text conversations
  • Employee’s request was individual in nature

4. The St. Louis office should not bring a case against the U.S. Postal Service for allegedly refusing access to its facility based on a misunderstanding.

5. A contractor who provides nursing services to D.C. Public Schools did not violate the NRLA by offering testing and contact tracing work to union employees in lieu of layoffs.

6. Employers have the right to search employees’ vehicles while on company premises and monitor employee activity on company-issued communication devices, computer systems and networks.

In the Verizon Wireless decision, the NLRB ruled that employers do not violate the NLRA with a company policy that allows them to search employees’ personal property on company premises, networks or devices.

The ruling signals the NLRB is moving further away from the Lutheran Heritage standard. The standard said certain rules were unlawful if they could discourage employees from engaging in activities protected under Section 7 of the NLRA, because employees might be dissuaded from engaging in lawful concerted activity.

This standard was overruled by the Boeing decision. Under the Boeing standard, the NLRB decides if a work rule, reasonably interpreted, interferes with the exercise of protected rights. If not, the rule stands without further analysis. If so, the NLRB evaluates the rule based on: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”

In accordance with the Boeing standard, the NLRB rejected as “unsupported speculation” the conclusion that Verizon’s work rule could chill protected activity. Rather, the NLRB found “an objectively reasonable employee would understand that the purpose of the rule is, as it states, to protect company assets, provide excellent service, ensure a safe workplace, and to investigate improper use or access.” Furthermore, the NLRB found that because the rule simply “reserves the right” of the employer to search employees’ personal property and does not impose frequent or routine searches, the possibility that such searches would lead to “eavesdropping” was too “remote” to justify invalidating the work rule. The NLRB said the employer’s interest in preventing theft outweighed the minimal impact the rule may have on protected activity.

What do these changes mean for employers?

In light of these developments, employers should continue to evaluate their employee handbooks and workplace policies and procedures. Contact Michael B. Victorian or any other member of Phelps’ Labor and Employment team if you have questions about how these developments impact employers and their employees. For more information related to COVID-19, see Phelps’ COVID-19: Client Resource Portal.