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Latest News - September 2012

September 5, 2012
Latest NLRB decision likely to hinder workplace integrity
Source: Crain's Cleveland Business
By: Kristin R. Erenburg

Kristin R. Erenburg is an attorney in the Labor and Employment Group of Walter & Haverfield LLP in Cleveland.

With the Labor Day holiday this week, it seems appropriate to focus on recent actions taken by the National Labor Relations Board (NLRB). Not surprisingly, the strength and effectiveness of NLRB decisions has varied greatly over the years, typically depending on the political affiliation of the administration in office. Few people would argue that, under the Obama administration, the NLRB has probably flexed its pro-labor muscles more so than can be remembered in the recent past.

However, the latest decision made by the NLRB, which deals with Section 7 of the National Labor Relations Act (NLRA) affecting "concerted activities," might actually have a chilling effect not only on employers, but also everyone involved in a workplace investigation. Under Section 7, employers in both union and non-union private sector environments are not permitted to interfere with or restrain employees from engaging in concerted activities which, by definition, are two or more employees acting together in furtherance of matters of mutual interest, such as compensation, benefits or workplace conditions.

The topic of "concerted activities" has already been in the news recently, largely because of controversies arising over employees' abilities to discuss employers via Facebook and other social media venues.

The latest discussion of Section 7 rights, however, relates to confidentiality and, more specifically, confidentiality involving the investigation of any number of workplace violations, such as sexual harassment, safety concerns and the like. Every well-written policy concerning workplace investigations includes a mandate that the involved employees refrain from conversations relating to the alleged workplace wrongdoing being investigated. The purpose of such a blanket policy is to ensure objectivity of the investigation and to keep evidence and testimony untainted. This practice is not unique to industrial relations. It is seen in many facets of society. It is for these same reasons that juries are sequestered and that police separate witnesses after a crime has occurred.

Despite the sound logic behind such treatment of witnesses, the NLRB has recently ruled that blanket confidentiality polices violate Section 7 of the NLRA. While the same decision allows employers to evaluate situations on a case-by-case basis, it is now the employer's responsibility to demonstrate that confidentiality is critical in each and every investigation. Without a doubt, this decision ties employers' hands and limits their ability to conduct objective and accurate investigations, thus opening the door for a host of problems for all involved.

For the employer, this means less control over the investigation and perhaps an impaired ability to run a workplace free of unlawful or dangerous activity. Employers will need to tread lightly in how they approach investigations for fear of reprisal. Importantly, they will need to initiate and wrap up investigations more quickly in an effort to stay ahead of office gossip. Consequences for employees exist as well. Complainants, who have historically relied on confidentiality for protection against embarrassment, co-worker retaliation and bullying, may be less likely to come forward. Witnesses, for the same reasons, may be less likely to become involved. Even the accused may now be subject to ostracism as a result of what turns out to be unsubstantiated allegations.

Most serious, however, is that the investigation may no longer be neutral. If confidentiality is not required, people can, and will, talk. Co-workers could gang up on the complainant, the object of the complaint or a witness. What should be independent accounts of what actually happened could change. Outcomes of investigations could be compromised and the very behavior that should be addressed and corrected may go on. Moreover, employers and supervisors could face increased liability from claims of retaliation.

While this decision could be overruled by a court or the NLRB itself (depending on the outcome of the 2012 election), employers need to be aware of this important change and take the following actions in the meantime:

• Remove blanket confidentiality requirements from handbooks and investigation policies.

• Emphasize company anti-retaliation policies. Train supervisors to identify and address potential problems.

• Seek advice from outside legal counsel before requiring confidentiality.

• If confidentiality is appropriate, document the specific reasons. Be consistent in confidentiality determinations.

• Get ahead of co-worker communications. Conduct investigations quickly to help ensure the integrity of the information



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