Impact of NLRB ruling

The NLRB rejected the employer’s position that its generalized concern about protecting the integrity of its investigation outweighed the employee’s NLRA concerted activity rights. The NLRB’s concern was with the blanket approach taken by Banner Health. Rather than simply prohibiting all discussions regarding workplace investigations, the decision instructs employers that, in order to minimize impact on employees’ NLRA rights, the employer must first determine whether:

• There are witnesses who 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.

An employer may prohibit employee discussions of ongoing investigations in situations in which it has a legitimate business justification that outweighs an employee’s right to communicate with co-workers. Routine or generalized prohibitions will not outweigh employee rights. Rather, the employer must be able to show that, as to a specific investigation, the employer made a determination as to whether any witnesses needed protection, evidence was in danger of being destroyed, or testimony was in danger of being fabricated.

In view of several other recent NLRB opinions focusing on § 7 rights in a variety of contexts, such as policies restricting employee expression of views in social media, companies are advised to consult with legal counsel to determine whether updates to personnel policies and handbooks are needed.

Robin Repass practices in Jackson Kelly PLLC’s Denver office, where she works with the firm’s Labor and Employment Practice Group. She can be reached at 303-390-0024 or via email at rrepass@jacksonkelly.com.