In an article I wrote several months ago (NLRB Decisions Hamper Employers’ Ability to Conduct Workplace Investigations), I discussed some decisions from the National Relations Labor Board (“NLRB”) that have expanded employee rights under Section 7 of the National Labor Relations Act (“NLRA”). 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 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.” (See, 29 U.S.C. § 158)
As I discussed a few months ago, the NLRB has issued a series of decisions which now limit an employer’s ability to direct or request employees to keep matters regarding ongoing workplace and/or human resources investigations confidential. The lead case in this area is Banner Health System, 358 N.L.R.B. No. 93 (2012). In Banner, 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 of the National Labor Relations Act (“NLRA”).
Under Banner, 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, prior to asking or requiring an employee to maintain confidentiality in workplace investigations, on an investigation-by-investigation basis, the employer must assess and determine whether any witness actually needs 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.
Until recently, the Banner restrictions were only found in NLRB cases. That changed in December 2014, when the California Public Employment Relations Board issued its decision in Los Angeles Community College District (2014) PERB Decision No. 2401-E. (Hereinafter “LACCD case.”)
In the LACCD case, the District decided to place an employee on administrative leave pending a fitness for duty examination. The written notice, which was stamped “confidential” informed the employee of the leave and stated, “You are hereby directed not to contact any members of faculty, staff or students.” General Counsel for PERB issued an unfair practice charge alleging that this directive violated Government Code section 3544 (a), which provides, in relevant part, that it is unlawful for a public school employer to “interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter.”
The Board found that the directive to not contact faculty, staff or students “could reasonably be construed to prohibit a variety of protected activities such as contacting members of the union, initiating a grievance or otherwise enlisting the support of fellow employees.” The Board rejected “the District’s argument that the directive, which the District admitted was boilerplate language used whenever an employee is placed on administrative leave, was necessary to prevent employees from tainting evidence gathered while an employee is on leave. . . . [T]he District presented no evidence about its investigation. Nor did the District explain how the integrity of such an investigation could be jeopardized by [the employee’s] participation in protected activities.” Thus, in short, the Board found that the employer had failed to assess and determine on a case-by-case basis whether or not any of the Banner factors would justify the confidentiality directive.
In its decision, the Board noted that “PERB does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct.” The Board explained, “The relevant question is whether the employer rule would tend to chill employees in the exercise of their protected rights. (Lutheran Heritage Village-Livonia, supra, 343 NLRB 646.)” The Board concluded that the directive “would reasonably be construed to prohibit [the employee] from participating in a variety of protected activities including discussing his working conditions with his coworkers or union, or initiating a grievance.”
The Board also rejected the District’s argument that the letter did not preclude the employee from contacting his union and pointed out that the union was copied on the letter containing the directive. The Board reasoned that copying the union did “not convey a sufficiently clear message that the District, in issuing the directive, did not intend to intrude on protected rights. The letter was stamped “confidential” which reasonably would be construed to prohibit any discussion of the matter. Any ambiguity in the directive’s meaning is construed against the District as the promulgator of the directive.”
Given PERB’s adoption of Banner, it is even more important than ever for California employers to avoid the use of boiler plate directives regarding confidentiality in investigations. Each matter should be evaluated by the employer and a determination made of which, if any, of the factors identified by the NLRB in Banner or what PERB refers to as “operational necessity” would justify a confidentiality admonition. In addition, the scope of the admonition needs to be crafted to fit the situation. For example, you may want to only limit confidentiality until the conclusion of the investigation. (See, Phoenix Transit Systems (2002) 337 NLRB 510) You may also want to include an express exception for communications with union representatives, counsel and/or the discussion of wages, hours and other terms and conditions of employment that are unrelated to the investigation.
Dan Rowley, April 2015