NLRB Curtails Workplace Investigations

A Workplace Law Client Alert

By: Bodman PLC

09/13/12

Every employer understands the importance of investigating workplace misconduct. Whether investigating work rule violations or harassment claims, employers typically instruct interviewed employees not to discuss the on-going investigation with others. This instruction is designed to protect the integrity of the investigation. Sharing the interviews and answers with others not yet interviewed may taint subsequent responses.

Investigation of workplace misconduct was just made more difficult by the National Labor Relations Board (“NLRB”). The common sense instruction not to discuss the inquiry now violates the National Labor Relations Act (“NLRA”) and creates an unfair labor practice. According to the NLRB in Banner Health System, 358 NLRB No. 93 (2012), employers must prove “a legitimate business reason” to prevent disclosure which outweighs the right of employees to discuss the investigation between themselves.

Just stating that the employer is seeking to protect the integrity of the investigation is not sufficient to avoid a NLRB violation. More is needed. Employers have the burden to prove that non-disclosure of the on-going investigation is required because:

• Witnesses need 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 rule applies equally to union and non-union employers. A violation could taint an investigation and possibly result in the NLRB ordering the reinstatement of a terminated employee with back pay.

How do employers faced with an investigation respond? First, revise all policies which direct employees not to discuss the on-going investigation with others. Discussion prohibitions must be removed. Second, evaluate the NLRB factors before starting, and during, a workplace investigation, to determine if any approved factors exist to support the non-discussion instruction. Third, continue efforts to protect the integrity of the investigation by limiting internal discussion. Remember, you can contact any member of Bodman’s Workplace Law Group for guidance.

Workplace Law Group

• Steven J. Fishman, Workplace Law Group Chair (248-743-6070 / sfishman@bodmanlaw.com)
• John C. Cashen (248-743-6077 / jcashen@bodmanlaw.com)
• Aaron D. Graves (248-743-6027 / agraves@bodmanlaw.com)
• David A. Malinowski (248-743-6033 / dmalinowski@bodmanlaw.com)
• Christopher P. Mazzoli (248-743-6066 / cmazzoli@bodmanlawcom)
• Karen L. Piper (248-743-6025 / kpiper@bodmanlaw.com)
• Maureen Rouse-Ayoub (248-743-6026 / mrouse-ayoub@bodmanlaw.com)
• Charles M. Russman (248-743-6039 / crussman@bodmanlaw.com)
• Donald H. Scharg (248-743-6024 / dscharg@bodmanlaw.com)
• Jonathan A. Young (248-743-6032 / jyoung@bodmanlaw.com)