Foley & Lardner LLP

20 August 2012
Labor & Employment Law Perspectives

NLRB Tries to Lift Cone of Silence

Recent editions of Foley’s Legal News: Employment Law Update have explained that all employers — even those without a unionized workforce — must take care to avoid unwittingly being subject to unfair labor practice charges when implementing and enforcing company-wide employee policies. For example, the NLRB recently intimated that at-will employment policies, which state they only may be changed by a written document signed by the employer’s chief executive, may violate the National Labor Relations Act (NLRA). (See July 23, 2012 Employment Law Update). Similarly, the Board has signaled its intent to “police” social media policies to determine whether they fall afoul of employees’ protected rights. (See May 21, 2012 Employment Law Update).

A recent NLRB opinion continues this trend. In Banner Health Systems, Case No. 28-CA-023438 (July 30. 2012), the Board concluded that when a company bars employees from discussing ongoing company investigations, it may violate employees’ rights to engage in “protected concerted activity” under the NLRA. In that case, a hospital employee raised concerns regarding sterilization procedures for surgical instruments. After the employee raised his complaint, the hospital’s human resources consultant — who routinely asked personnel making complaints to not discuss the matter with other employees — reminded the employee that the investigation into his claims was ongoing, and instructed him not to discuss the matter with co-workers. Additionally, the hospital provided complaining employees with an “Interview of Complainant Form,” which specifically prohibited discussing ongoing complaints and investigations with other employees.

The NLRB reversed an earlier Administrative Law Judge’s finding and determined that the hospital’s prohibition on discussing the investigation violated the employee’s right to engage in protected concerted activity under the NLRA. According to the Board, in order to preserve employees’ rights, a company must first make an individualized assessment in order to “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 Board concluded that the hospital’s blanket approach failed to meet this requirement and that the hospital’s stated concern of protecting the integrity of its investigation did not outweigh the employees’ rights to engage in protected concerted activity.

Though this NLRB opinion is contrary to common legal advice to employers and could eventually be reversed by a court, employers should be cautious in their current approach on the issue of confidentiality. All employers, regardless of whether they have a union workforce or not, should review their policies with an eye toward avoiding unfair labor practice charges. At a minimum, instead of absolute bans on discussing ongoing investigations, companies would be advised to perform an individualized analysis of each situation, in accord with the factors described above.