The hyperactive NLRB has fired salvos at employers on three new fronts—confidentiality, workplace access, and employment at will—and few employers will be left unscathed.
The National Labor Relations Board’s (NLRB) recent rulings reflect a trend at the NLRB to find unfair labor practices in policies and procedures employers have long considered legitimate and proper.
For clarification, we turned to Patricia M. Trainor, J.D., SPHR, who is Managing Editor of BLR’s human resources and employment law publications.
‘No’ to Confidentiality of Internal Investigations
For example, Trainor says, many employers follow EEOC’s long-standing guidance and attempt to maintain the confidentiality of employees in harassment investigations.
Although employers should not guarantee victims or witnesses complete confidentiality, an assurance that participation in an investigation will be kept confidential to the extent possible may encourage employees to be forthcoming in what can be very difficult circumstances.
However, last year, the NLRB found an employer violated employee’s Section 7 rights when it promulgated a rule prohibiting employees from discussing ongoing workplace investigations. (Section 7 of the NLRA guarantees employees—whether unionized or not—the right to engage in protected concerted activities regarding the terms and conditions of employment.
The employer argued that it had a legitimate business reason for requesting confidentiality—to protect possible victims, witnesses, and an accused sexual harasser. (Not to mention following EEOC guidelines.)
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The NLRB rejected the employer’s argument, finding that it did not meet its burden of demonstrating a legitimate and substantial justification, because it did not determine whether confidentiality was actually required in this particular case. Rather, it applied a blanket rule against discussing all internal investigations. (Hyundai America Shipping Agency, Inc., 357 NLRB No. 80 (2011).
The NLRB has now gone a step further, ruling that an employer violated the NLRA when it just asked employees to refrain from discussing an ongoing internal investigation (Banner Health System, 358 NLRB No. 93 (2012). The employer did not threaten discipline or discharge.
The Board ruled that the employer’s “generalized concern” for the integrity of the investigation was insufficient to overcome the impact on employees’ Section 7 rights. A routine request to refrain from discussing an internal investigation was unsatisfactory; an individualized assessment needed to be made.
‘No’ to Blocking Off-Duty Access to the Workplace
The NLRB has also narrowed the circumstances under which an employer may limit off-duty employees’ access to the workplace. Off-duty access policies must balance the rights of employers to control access to their property with employees’ right to communicate with fellow workers at the workplace on their own time regarding the terms and conditions of employment.
More than 35 years ago, the NLRB articulated a three-prong standard for determining if a ban on off-duty access to the workplace is valid. Under that standard, an employer’s prohibition against employees entering the workplace while off-duty is valid if it:
- Limits access only to the interior of the facility
- Is clearly disseminated to all employees
- Applies to off-duty access for any purpose, not just union organizing activity. Tri-County Medical Center, 222 NLRB 1089 (1976).
Apparently following this standard, a hospital maintained a no-access policy stating that off-duty employees could not enter the interior of the hospital or outside work areas unless: the employee was receiving medical care; the employee was visiting a patient; or the employee was conducting hospital-related business (defined as the employee’s “normal duties or duties as specifically directed by management”).
The NLRB found this definition overly broad under the third prong of the standard, essentially giving the hospital “free rein to set the terms of off-duty employee access” Sodexo America LLC, 358 NLRB No. 79 (2012).
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The Board relied on another recent case in which it found a no-access policy invalid under the third prong when it prohibited off-duty employees from entering the premises except for employer-sponsored events, such as retirement parties and baby showers. The employer enforced the rule against an off-duty employee campaigning for a union and another employee who came to the facility to retrieve his wallet. The Board found that through this rule, the employer was “telling its employees, you may not enter the premises after your shift except when we say you can” Saint John’s Health Center, 357 NLRB No. 170 (2011).
In tomorrow’s Advisor, NLRB and “at-will” statements, how to react to NLRB changes, plus an introduction to the all-HR-in-one website HR.BLR.com.
I don’t understand what the penalty was for the employer who asked the employee to refrain from discussing with other employees an ongoing investigation. I can understand the right of employees to discuss working conditions as part of a concerted effort, but to allow employees to coverup wrong doing, compare testimony, or incite a disturbance doesn’t seem to be covered. Even in the case where the employer asked the employee to refrain from discussing, the employee still had the discretion to comply.
I was confused when it spoke of employee’s having a right to of access to other employee’s during off duty hours. At first, it appeared that the NLRB was saying that employee’s during off duty hours had the right to come to the workplace to talk to other employees. On second glance, it appears that as long as an off duty employee has access to communicate with other employees (phone, email, after work social situations, etc.) that an employer can still restrict off duty employees from “hanging out” on the job where they may end of claiming they are working and being required to be paid.