Aug 07, 2012

NLRB Finds Unlawful Non-Union Employers’ Investigation Confidentiality Requests and At-Will Employment Policies

Recently, the National Labor Relations Board (“NLRB”) expanded the scope of Section 7 of the National Labor Relations Act (“NLRA”) in union and non-union workplaces. Section 7 protects employees’ right to engage in “concerted activity” to change the terms and conditions of their employment.

On July 30, 2012, the NLRB ruled that Banner Health System d/b/a Banner Estrella Medical Center violated the NLRA when the company’s human resources consultant asked an employee who complained about the sterilization process for surgical instruments not to discuss the matter with co-workers while the investigation was ongoing. The Administrative Law Judge (“ALJ”) initially ruled in favor of the employer and found the consultant’s suggestion of maintaining confidentiality analogous to the sequestration rule used by the courts, so that “employees give their own version of the facts and not what they heard another state.” He ruled that there was no violation of the NLRA because the company had “a legitimate business reason for making this suggestion.” The NLRB overruled the ALJ and found that Banner’s “generalized concern with protecting the integrity of its investigation is insufficient to outweigh employees’ Section 7 rights.” However, the NLRB’s ruling went beyond just “protecting” the complainant. It held that a “blanket approach” rule prohibiting “employees from discussing ongoing investigations of employee misconduct” violated the NLRA. (emphasis added.)

The NLRB ruling did not address the 1999 Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors from the Equal Employment Opportunity Commission that states that “An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible” and “ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.” (Modified on April 1, 2010.)

Earlier in the year, the NLRB addressed the “at-will” policies that most employers have in their handbooks. The problem is not the at-will language per se. An NLRB ALJ ruled that the American Red Cross Arizona Blood Services Region violated the NLRA by having in its handbook “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” In the same month, the NLRB filed a complaint against Hyatt Hotels Corporation because its handbook prohibited a change of the at-will status of an employee without a written statement signed by the employee and two Hyatt executives. The NLRB’s position is that such language could limit employees’ right to engage in protected concerted activity to change their at-will status.

In response to the NLRB’s initiatives, employers should review their policies and procedures to ensure compliance with the ever-changing interpretations of the NLRA. Employers should not have a per se prohibition on employees discussing investigations, and disclaimers that broadly state that at-will employment cannot be altered or may be revised in a particular way should be avoided.

If you have any questions about these issues, please contact employment counsel at Smith, Gambrell, & Russell, LLP.

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