A version of this article was originally published in the November 2012 issue of The HR Specialist. It is reprinted here with permission.
The National Labor Relations Board (NLRB), the federal agency charged with enforcement of the National Labor Relations Act (NLRA), has increased its focus on social media and employer/employee communications, regardless of whether the employee is represented by a union. Section 7 of the NLRA protects the rights of both union and non-union employees to engage in “concerted activities,” which includes discussions about wages, hours, or terms and conditions of employment by and between employees.
In several recent cases in the last year, the NLRB determined that social media postings by employees about workplace issues qualified as protected concerted activity, and that employers violated the NLRA by taking adverse action against these employees for these postings. In these decisions, the NLRB has emphasized that employers may violate the NLRA simply by maintaining personnel policies that employees could reasonably interpret to be prohibiting protected concerted activities. This has resulted in employers revising their general policies to be more specific as to prohibited communications by employees and to include specific caveats that the policies do not intend to prohibit or in any way restrict legitimate employee communications protected by Section 7 of the NLRA.
Following this line of cases, in Banner Health System d/b/a Banner Estrella Med. Ctr., 358 NLRB No. 93 (July 30, 2012), the NLRB found that the employer violated Section 8(a)(1) of the NLRA by instructing employees not to discuss ongoing internal investigations of employee misconduct. Section 8(a)(1) provides that it is an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Before this decision, the standard practice for employers investigating various kinds of misconduct, including discrimination, theft, or harassment, is a request by the employer that employees maintain confidentiality while the investigation proceeds.
In Banner Health, the employer’s human resources consultant used an “Interview of Complainant Form” when conducting an investigation of a complaint. This form was not given to the employee but it included an instruction that was verbally provided to the employee. The human resources consultant simply asked the employee to refrain from discussing the matter with his coworkers while the investigation is ongoing. The administrative law judge (ALJ) actually found that the instruction was for the purpose of “protecting the integrity of the investigation.” Therefore, he found that the employer had a legitimate business reason for giving the instruction. The ALJ got it right. Unfortunately, in a 2-1 decision, the NLRB rejected the employer’s argument (and the ALJ’s reasoning) that its confidentiality instruction was necessary to protect the integrity of the ongoing investigation. The NLRB determined that the employer’s “generalized concern with protecting the integrity of the investigation is insufficient to outweigh employees’ Section 7 rights.” Rather, the NLRB stated that to justify this type of instruction an employer must show a legitimate business need that outweighs an employee’s Section 7 rights. The NLRB held that it was the employer’s burden “to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.” In essence, the NLRB is now requiring that employers make sure that they can establish that the need for confidentiality is warranted under the facts of the particular investigation before a request for confidentiality can be made to the employee witness. Practically speaking, an employer may not know, at the onset of a workplace investigation, where the investigation may lead and whether a lack of confidentiality will somehow taint the investigation going forward. Although this requirement will certainly make investigations more difficult for employers, it is an obstacle that can be cleared by taking the appropriate steps.
Therefore, in light of the Banner Health decision, employers should review their policies and practices regarding internal investigations and eliminate from the process any component that includes a blanket instruction that complaining employees or other witnesses refrain from communicating about the issue with co-workers. If an employer believes that confidentiality is needed to protect the integrity of the investigation, as it should be for most investigations, it should protect itself by providing the witness with a specific, written reason why confidentiality must be maintained as the investigation proceeds. For example, in a sexual harassment investigation an employer can legitimately maintain that it is vital to protect confidentiality in the workplace, both for ascertaining the “truth” of any harassment allegation and also for protecting the reputations of the alleged harasser and the victim.
In conclusion, although this decision reflects the NLRB’s lack of understanding concerning workplace investigations in general and, specifically, that witness confidentiality is crucial to the success of same, a savvy employer can avoid running afoul of this new NLRB standard by taking the additional step of providing written justification for maintaining confidentiality as part of any witness interview.