Workplace Investigations and the National Labor Relations Act: Confidentiality and Other Concerns
The National Labor Relations Board (the “Board”) recently issued a decision that has garnered much attention. In Banner Health System, the Board opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation with coworkers only when it has a legitimate business reason that outweighs the employee’s rights under Section 7.
While the Board’s decision in Banner Health is certainly putting the issue of confidentiality instructions on the list of things an employer must worry about when conducting workplace investigations, it may not be the employer’s only labor relations consideration. For example, where a union is present, and the employer seeks to interview an employee concerning her conduct, the employer must take care not to deny the employee her Weingarten rights. Thus, in unionized settings, bargaining unit employees may demand to have a union representative present for an investigative interview if the employee reasonably believes she may be disciplined for something she says. Upon receiving a valid request for union representation, the employer is permitted one of three options: (1) grant the request; (2) cancel the interview; or (3) offer the employee the choice of either continuing the interview without a union representative or pass up the opportunity to give their own side of the story. However, an employer is under no obligation to permit a union representative to attend a non-investigative meeting solely for the purpose of imposing discipline, or a meeting where an employee cannot form a reasonable belief that the interview may lead to the imposition of discipline.
Finally, where a workplace investigation is conducted in preparation for the trial of an unfair labor practice charge, an employer must notify employee witnesses of the purpose for the interview, and provide assurances as to the employee’s rights and the scope of inquiry. Generally, the notice will take the form of a written notice of rights – often called a “Johnnie’s Poultry” notice – to be signed by the employee witness and retained by the employer.
Takeaways: An employer should be aware of the protections afforded union and non-union employees when it plans to conduct workplace interviews. The employer should prepare in advance for the interview, taking into consideration the circumstances under which the interview will be conducted. The employer should determine whether the interview is investigative or disciplinary; how it will respond to a demand for representation; and the limits to an employee’s representational rights?