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NLRB Decision Hinders Workplace Investigations

With the release of yet another controversial decision by the National Labor Relations Board this year, employers are again struggling to make sense of limitations imposed on their internal workplace policies. The NLRB's July 30, 2012 decision in Banner Health System targets workplace investigations and prohibits an employer from requesting participating employees not discuss a workplace misconduct investigation until the employer has first determined there is a need for confidentiality based on one of four criteria. The otherwise common practice of instructing employees to keep an investigation confidential is now subject to consideration of whether:
  • Witnesses 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.
The matter fell into NLRB hands after an administrative law judge deemed this standard procedure acceptable because it served the legitimate business purpose of protecting the integrity of an investigation. The case involved a hospital employee who was disciplined for insubordination after he, out of concern for patients' well-being, refused a supervisor's order to sterilize surgical instruments with hot water from a coffee machine when the hospital's steam system failed. The employee was asked not to discuss the investigation with his co-workers. The employee filed an unfair labor practice charge against the hospital claiming that the request for confidentiality violated his right to discuss workplace conditions with other workers. When the judge ruled in favor of the employer, the employee appealed to the NLRB, who determined that the hospital's "blanket approach" to the issue was overbroad and established the aforementioned prerequisite to the routine instruction. Concerns voiced over repercussions of the ruling include the chilling effect it may have on victims and witnesses as well as the limitations it may impose on an employer's ability to make key credibility determinations, conduct a focused investigation, and serve the interests of itself and its employees by stopping workplace misconduct.

While this controversial decision is being challenged, employers are left to figure out how to navigate the now more perilous waters of internal investigations. Consistent with the NLRB decision, employers should review their policies and practices governing internal investigations for blanket instructions to employees regarding communication during an investigation and seek the advice of an employment attorney should any questions regarding compliance arise. If an employer launches an investigation, determining whether confidentiality is necessary should be done in contemplation of the four factors identified in Banner Health and the employer's rationale for any directive to employees should be thoroughly documented. With this decision, employers should also consider the importance of the initial speed of an investigation to curtail risks of witness contamination, evidence tampering, fabrication, and other concerns.

The full board decision is available at: http://www.huntonlaborblog.com/uploads/file/Banner_Health_System.PDF
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