For many years the National Labor Relations Act (“NLRA” or “Act”) and decisions by the National Labor Relations Board (“NLRB” or “Board”) were primarily focused on issues involving collective bargaining, unfair labor practices and union/management issues. Over the last few years, the Board has expanded the scope of the NLRA through a series of decisions that impact both union and non-union employees. These decisions restrict an employer’s ability to require confidentiality of workplace investigations and expanded the scope of what constitutes “concerted activity” in such a way that they can impede an employer’s ability to conduct a prompt, thorough and impartial investigation of allegations of discrimination and/or harassment as required by anti-discrimination laws.
Under Section 7 of the NLRA, employees have the right to engage in various protected activities which are referred to as “concerted” or “protected” activities. These rights include the right to “discuss discipline or disciplinary investigations involving fellow employees.” (Caesar’s Palace, 336 NLRB 271, 272 (2001).) Historically, however, employers have been allowed to require employees to maintain confidentiality of ongoing investigations if they establish a “legitimate and substantial business justification” that outweighs the employee’s Section 7 rights. (Id.) A “legitimate and substantial business justification” included ensuring that “witnesses were not put in danger, that evidence was not destroyed, and testimony was not fabricated.” (Id.) It is an unfair labor practice under Section 8 of the Act for an employer to “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” 29 U.S.C. § 158
Over the last few years, the NLRB has issued decisions limiting an employer’s ability to require employees to maintain confidentiality during a workplace investigation. In Hyundai America Shipping Agency, Inc., 357 N.L.R.B. No. 80 (2011) the Board adopted the Administrative Law Judge’s (“ALJ”) finding that an employer’s “oral rule prohibiting employees from discussing with other persons any matters under investigation by its human resources department” was a violation of Section 8. The ALJ had rejected the employer’s argument that it had a legitimate and substantial business justification for the confidentiality rule based on its “desire to protect the victim, witnesses and accused harasser in the investigation; to preserve confidentiality consistent with the Equal Employment Opportunity Commission guidelines and state and federal courts; and to avoid potential liability for accused harassers in defamation and other causes of action.”
The next year the Board went even further. In Banner Health System, 358 N.L.R.B. No. 93 (2012), the NLRB found that a routine request by the employer’s human resources investigator to employees making complaints that they not “discuss the matter with their coworkers while the [employer’s] investigation was ongoing” violated Section 8. The employer had asserted that the request was necessary to protect the integrity of the investigation. The Board found that this “generalized concern” was “insufficient to outweigh employees’ Section 7 rights.” The Board quoted from the ALJ’s decision in Hyundai America to support its conclusion that “‘to first determine whether in any give[n] investigation witnesses need[ed] 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.’”
Under this decision, general or blanket rules prohibiting employees from discussing ongoing investigations are invalid because they fail to establish that an employer has a legitimate and substantial business justification for confidentiality. Instead, before asking or requiring an employee to maintain confidentiality in workplace investigations, on an investigation by investigation basis, the employer should assess and determine whether the factors listed in Banner Health justify confidentiality.
Under the Act, employees who have engaged in concerted activities are protected from being questioned about their “protected” activities and can refuse to answer questions or provide relevant information regarding their “protected” activities. In the context of a workplace investigation such restrictions can impede an employer’s ability to conduct an adequate and thorough investigation and can conflict with an employer’s obligation to protect the confidentiality of the harassment allegations. (See, e.g., EEOC’s Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors found at http://www.eeoc.gov/policy)
Recently, the NLRB issued a decision which has the potential of having a significant impact on the ability of employers to conduct adequate workplace investigations. In Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (Aug. 11, 2014) the NLRB found that an employee who asked coworkers to assist her in preserving evidence for a potential sex harassment complaint had engaged in “concerted activities” for “mutual aid and protection” under Section 7 of the Act.
Specifically, the complaining employee saw an offensive statement and drawing on a whiteboard in the employee break room. Because the writing related to her, she wanted to document it. However, the company prohibited cameras in the workplace. Therefore, she copied the drawing and statement on a piece of paper and had other employees sign the paper verifying that what she drew was accurate. The employee relations manager for the company conducted an investigation of the employee’s complaint and related matters. As part of the investigation the complaining employee was asked why she solicited other employees to sign the document. In addition, she was told to not seek any additional statements from employees.
The Board found that the employee’s solicitation of her coworkers to sign her hand-drawn reproduction of what was written/drawn on the whiteboard constituted “protected activity” under Section 7 of the NLRA. Prior to this decision, Section 7 rights were limited to “concerted” activities by multiple employees who take “collective” action for the “purpose” of “mutual” aid or protection. Although in the Fresh & Easy case the NLRB held that the company had not violated the NLRA when its employee relations manager questioned the complaining party. However, the Board made it very clear that the decision was based on the specific facts and circumstances of that case.
Some commentators have opined that given the Board’s ruling in the Fresh & Easy case, in the future individual employees who seek the assistance of other employees while they are preparing to assert a claim against their employer under any federal or state laws involving the workplace may be found to have engaged in “concerted activities” and when an employer attempts to conduct an investigation its efforts will be found to constitute a violation of Section 8. One commentator has noted the following:
“The numerous and lengthy opinions in this case are a prelude to the many years of litigation that will arise as a result of the NLRB’s decision. For now, there are at least [two] implications of this decision that the labor professional should be thinking about:
There are many statutorily protected rights for employees. Member Miscimarra [in his dissenting opinion] lists a number of them in his opinion, including wage/hour, workplace safety, workers’ compensation, unemployment compensation, and discrimination laws. Thus, there [are] a wide array of situations in which NLRA rights could arise.
Importing NLRA protections into workplace investigations of harassment, or other legal violations, will complicate those investigations. The facts of this case demonstrate this difficulty, and Member Miscimarra discussed these issues in his opinion. The employer asked just two questions that were allegedly unlawful “interrogation” about [the complaining employee’s] concerted activity. While the NLRB did not find a violation of the statute on account of these two questions, the majority’s holding rests on extremely narrow grounds. Thus, future investigations involving different conduct and different questions may not be protected. Careful consideration of how the investigation is structured and what is asked will be very important.” [Bold added for emphasis.] (http://www.vorysonlabor.com; http://www.littler.com)
As a Board member stated in their dissent to the majority’s decision, “One cannot determine what other questions, during a different investigation, will constitute unlawful interference, restrain or coercion.” (Fresh & Easy, supra, footnote 70 in the dissenting opinion of Member Miscimarra.) In the mean time, investigators conducting workplace investigations must be cautious when questioning employees about activities that may later be found to constitute concerted activities.
Over the last few years the NLRB has issued decisions which focus on enforcing employee rights under the NLRA in an expansive manner that fail to take into considerations the requirements mandated by other federal and state laws. This failure by the NLRB has unnecessarily complicated the processes employers must follow in order to comply with the other federal and state employment laws thus weakening the effectiveness of the laws’ ability to prevent the conduct the laws were intended to address. This is especially true in connection with employers’ efforts to have and maintain a discrimination and harassment free workplace.
by Daniel W. Rowley, October 2014