Internal Investigations The National Labor Relations Act

News & Analysis as of

eWorkplace Policies Restricting Employees’ Acceptable Use of Technology, Social Media & The Cloud

I. OVERVIEW – THE MODERN LANDSCAPE - A. Physical Conduct PLUS Digital Activity - Traditional concerns for employers have included: conduct leading to liability to third-parties; “frolic and detour” or other...more

Executive Labor Summary - July / August 2015

Quickie elections seem here to stay, but Senate Republicans aren’t giving up. On July 29, the National Labor Relations Board won another challenge to its “quickie election” rules pursued by employer groups. This time, Judge...more

NLRB Says Employers Cannot Ask Employees Not to Discuss Internal Investigation

When conducting an internal investigation involving possible disciplinary violations, employers often ask participants in the investigation to maintain its confidentiality pending completion. Last month, the National Labor...more

Board Overrules Longstanding Protections Against Disclosure of Witness Statements

Since 1978, the National Labor Relations Board (NLRB) has treated witness statements as exempt from an employer’s general duty to furnish information to unions under Section 8(a)(5) of the National Labor Relations Act (NLRA)....more

NLRB Limits Confidentiality in Workplace Investigations

In two decisions issued on June 26, the National Labor Relations Board overruled its longstanding precedent holding that employers may withhold witness statements from requesting unions and further held that general policies...more

"Balancing Protection of Information With Employee Rights in Confidentiality Policies"

The developing law on employer confidentiality policies underscores the tension between an employer's ever-increasing need to protect confidential information and an employee's established right to discuss terms and...more

National Labor Relations Board Majority Holds That Seeking Co-Worker Assistance with an Individual Harassment Complaint is...

Last week, the NLRB took an exceptionally broad view of what constitutes “concerted activity” and what kind of efforts are aimed at “mutual aid or protection” under the National Labor Relations Act. For employers, this could...more

NLRB Continues to Throw Up Roadblocks for Internal Investigations

As we previously reported, the National Labor Relations Board has thrown down some pretty significant roadblocks for employers attempting to conduct thorough and actionable internal investigations. The Board continued those...more

NLRB Takes Aim at Non-Union Employers

The National Labor Relations Board (NLRB) recently handed down a series of decisions that challenged the fundamental tenet of the employee-employer relationship: at-will employment. This new affront came on the heels of a...more

Further Guidance: NLRB General Counsel's Office Weighs In On Confidentiality During Workplace Investigations

Recently, the National Labor Relations Board's (NLRB) General Counsel Division of Advice ("Division of Advice") released a memorandum offering guidance to an NLRB Regional Director concerning employers requiring...more

Employment Law Advisory for May 1, 2013: NLRB Division of Advice Issues Guidance on When Employer May Demand Confidentiality in an...

Internal investigations of possible employee misconduct or other employment-related issues are not uncommon. Most employers who conduct such internal investigations routinely request that the complainant, the target of the...more

The National Labor Relations Board 2012 Year in Review

Introduction - Wow, 2012 was quite the year for the National Labor Relations Board (“Board”)! Last year, we discussed the Board’s agenda, which at the time we described as aggressive, but with the benefit of...more

As 2012 Ends, So Does the NLRB's Longstanding Bright-Line Rule Protecting Witness Statements from Disclosure

As the calendar year ends, so does National Labor Relations Board Member Brian Hayes' term, prompting a series of decisions, including Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012). There the Board reversed 34 year-old...more

NLRB Focuses On Employers’ Internal Investigations

Originally published in the November 2012 Issue of The HR Specialist. The National Labor Relations Board (NLRB), the federal agency charged with enforcement of the National Labor Relations Act (NLRA), has increased its...more

NLRB Ruling Condemns Blanket Confidentiality Policies During Internal Investigations

In Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012), the National Labor Relations Board (NLRB) held that an employer’s maintenance and application of a general confidentiality rule...more

NLRB and EEOC May Target Employer Efforts to Keep Employees Quiet During Internal Investigations

A recent decision from the National Labor Relations Board (NLRB) and comments from an Equal Employment Opportunity Commission (EEOC) attorney reveal a risk in prohibiting employees from discussing ongoing internal...more

Employer's Routine Requests to Employees to Keep Internal Investigation Matters Confidential Found Unlawful by NLRB

On July 30, 2012, the National Labor Relations Board (NLRB) ruled that a non-union employer’s practice of routinely advising its employees not to discuss ongoing internal investigation matters with their coworkers violated...more

Silence is Not Golden - Employers Should Rethink Policies that Silence Employees During Internal Investigations

In light of a recent U.S. Equal Employment Opportunity Commission (“EEOC”) communication, employers should review their internal investigation policies to ensure that they do not completely silence employees. In an August 3,...more

Did You Know…Blanket Confidentiality Requirements Regarding Employment-Related Investigations Violate Section 7 of the NLRA

As part of its current campaign to take more aggressive positions regarding policies applicable to nonunion workers, the National Labor Relations Board recently ruled that a human resources consultant’s routine practice of...more

Mum's Not Necessarily the Word: NLRB Complicates Employers' Internal Investigations

In a ruling that affects both union and non-union employers, the National Labor Relations Board held that an employer must establish a specific legitimate business justification for requiring employees to maintain...more

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