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Ahead of the Curve Auto Supplier Blog

August 29, 2012

Investigations Aren’t Always Confidential, NLRB Rules

 What on Earth is going on at the NLRB?  First the Acting General Counsel sticks his nose in the business of non-union employers by making a career, it seems, out of going after social media policies. (You can read more about that at Michigan Employment Law.)  Now, the NLRB is going after your investigation policy. And if that isn’t enough, your at‑will policy may be targeted, too.  That's right. The NLRB may come after you if you tell employees to keep investigations confidential.  Imagine, if you will, that an employee makes a complaint about a coworker. And so, as a result of that complaint, let's say it is a harassment complaint, you begin an investigation. During the course of the investigation, you interview employees and, as is your practice, you tell all of the employees you interview that they need to keep the investigation confidential and not talk to coworkers about it.  You’re probably thinking there’s nothing wrong with that. You’re probably thinking it’s just good practice and should not generate any complaints.  But at least according to the NLRB, you would be wrong. On July 31, 2012, the NLRB issued its decision in Banner Health System and James A. Navarro, Case 28-CA-023438, July 30, 2012  Decision and Order by Members Hayes, Griffin, and Block. And here is what the board said in the decision:  "As the judge found, human resources consultant JoAnn Odell routinely asked employees making a complaint not to discuss the matter with their coworkers while the Respondent's investigation was ongoing.  The judge found that the Respondent's maintenance and application of this prohibition did not violate Section 8(a)(1).  We disagree." To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employee's Section 7 rights.  See Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (20110). . . .  In this case the judge found that the Respondent's prohibition was justified by its concern with protecting the integrity of its investigations.  Contrary to the judge, we find that the Respondent's generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights.  Rather, . . . it was Respondent'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. The Respondent's blanket approach clearly failed to meet those requirements.  Accordingly, we find that the Respondent, by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct, violated Section 8(a)(1) of the Act." Wow. And if you think that is not bad enough -- and it is --  the NLRB is also going after your at-will disclaimers. In Case Number 28-CA-061114, filed against Hyatt Hotels, the NLRB alleged that Hyatt’s at‑will disclaimer in its employee handbook was discriminatory. According to the NLRB,, language such as:  "I understand my employment is 'at-will.'   I acknowledge that no oral or written statements or representations regarding my employment can alter my at‑will employment status, except for a written statement signed by me. . . .”  And "The sole exception [to employer's right to change handbook and other policies] to this is the at-will status of my employment, which can only be changed in a writing signed by me . . . ."  The NLRB thought that this language tended to chill Section 7 activity.  The case settled and Hyatt agreed to remove the offending language. Wow, again.  So here is the fundamental problem. The NLRB is trying to interject federal statutory concepts into this traditionally state law contract arena. Employers have been telling people not to talk about ongoing investigations for years. And for even longer, employers have included at‑will language in their employee handbooks. But now, when private-sector unionization is at an all-time low, the NRLB decides that these concepts tend to chill Section 7 rights? Coincidence?  I don't think so.

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