NLRB: internal investigations under attack?
For decades it has been common practice for employers to prohibit employees from discussing ongoing internal human resource investigations. Why? Such a practice helps to protect the integrity of the investigation, reduces the likelihood of unlawful retaliation, and curbs the churning of the rumor mill, which can lead to a variety of undesirable workplace issues. In a ruling that has sent shockwaves through the human resources world (Banner Estrella Medical Center Case Number 28-CA-023438), decided on July 30, 2012, the National Labor Relations Board (NLRB) has now declared that prohibiting employees from discussing ongoing investigations may violate the National Labor Relations Act (NLRA).
Prior to the rise in the use of social media, employers without unions typically did not have to pay too much attention to the NLRA. Among other things, the NLRA allows employees to engage in protected, concerted activity. Under that concept, employees have a right to communicate as a group with each other, their employer and others regarding their terms and conditions of employment so long as they do so in a lawful fashion. Over approximately the last 18 months, numerous employers — union and non-union — have had to get up to speed on the NLRA in light of the NLRB’s aggressive stance on protected, concerted activity as it applies to social media. (See our July 8, 2012 post for more on this topic). Now, employers who may have thus far dodged the social media bullet must reassess the most basic of practices: trying to maintain investigation confidentiality and integrity.
The NLRB’s ruling stems from a case involving James Navarro, a sterile equipment technician at a Phoenix medical center. One day at work, a steam pipe broke, so Navarro informed his supervisor, Ken Fellenz, that surgical instruments could not be sterilized that day. Fellenz told Navarro to sterilize instruments using a low temperature chemical sterilizing machine combined with hot water from a coffee machine. Believing that this process would not sterilize the instruments, Navarro did not sterilize any instruments that day. The following day, Navarro learned that someone else had sterilized instruments using the process he considered questionable. In response, Navarro voiced concerns to a co-worker, another supervisor and a nurse. Fellenz confronted Navarro, then contacted a human resources representative. The human resources representative advised Fellenz against corrective action and instead agreed with Fellenz that Navarro would be provided with non-disciplinary coaching.
Shortly thereafter, Navarro received his yearly performance evaluation, on which Fellenz rated him as not fully meeting behavior expectations. Navarro complained to human resources and was told not to discuss the matter with co-workers while human resources was investigating the performance evaluation. After being told by a human resources consultant that the evaluation was internally inconsistent, Fellenz revised the evaluation to conclude that Navarro met the behavioral expectations. Navarro then filed a complaint with the NLRB’s Phoenix office alleging that his employer violated Section 8(a)(1) of the NLRA, which makes it an unfair labor practice for an employer to interefere with an employee’s rights protected under Section 7. Among other protections, Section 7 states that employees have the right to engage in concerted activities for the purpose of mutual aid or protection.
An administrative law judge (ALJ) initially ruled on the complaint. The ALJ ruled that the content of the original performance review was not drafted in retaliation against protected concerted activity. The ALJ also ruled that the instruction to Navarro not to discuss the investigation was based on a legitimate business reason of protecting the investigation’s integrity. However, during the hearing it became known that the employer had all of its employees complete a confidentiality agreement that prohibited employees from discussing such issues as salaries and discipline. The ALJ ruled that this confidentiality agreement violated the NLRA.
The employer appealed the ALJ’s ruling to the NLRB, and the NLRB’s general counsel cross-filed on Navarro’s behalf. Any guess on how this appeal turned out? For starters, the NLRB adopted the ALJ’s ruling that the evaluation was not unlawful, but the confidentiality agreement was unlawful. Then, the NLRB modified the ALJ’s decision and ruled that the employer’s prohibition on employees discussing internal investigations violated Section 8(a)(1) of the NLRA. The NLRB reasoned that the generalized concern about protecting investigation integrity did not outweigh an employee’s right to engage in protected, concerted activity.
So what does this all mean? The NLRB has suggested that a case-by-case analysis must be performed regarding the need to keep an investigation confidential. According to the NLRB, an employer is required 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.” This ruling places employers in the very awkward position of micro-analyzing each internal investigation in order to determine if confidentiality during the investigation is justified.
This decision has not yet been appealed, and NLRB decisions are effective while being appealed unless specifically stayed by a court order. Accordingly, for now, this decision stands. Until appealed or otherwise modified, proceed cautiously when conducting internal investigations and do not hesitate to reach out to labor and employment counsel if assistance is needed.