This post was contributed by Rick L. Etter, an associate in McNees Wallace & Nurick LLC’s Labor and Employment Group.
The National Labor Relations Board recently issued a decision holding that an employer violates the National Labor Relations Act by establishing workplace investigation procedures, policies, or forms that attempt to prohibit employees from discussing ongoing workplace investigations with their coworkers. Specifically, the Board concluded that such a rule violates Section 7 of the NLRA, which protects employees’ rights to engage in “concerted activities” for their mutual aid and protection.
In Estrella Medical Center, the employer established a standard investigation process that included the reading of six introductory statements before each witness interview. One of the six statements was a confidentiality statement instructing the witness that he or she was prohibited from discussing matters related to the investigation until the investigation was complete. The Board determined that the employer failed to establish that its interest in protecting the integrity of the at-issue investigation outweighed the employee’s Section 7 rights because the employer developed a “blanket approach” of reading this statement before every interview. The Board explained that it is the employer’s burden to determine – on a case-by-case basis – whether the circumstances of each specific investigation are such that witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up. Only when one of these concerns is present will the employer’s interest in protecting the integrity of the investigation outweigh the employees’ Section 7 rights.
As a result of this decision, it would be prudent for all employers – union and non-union – to review their investigation policies, procedures, and forms to ensure that they cannot be interpreted as creating a blanket prohibition against employee discussion of workplace investigations.