LABOR AND EMPLOYMENT LAW ALERT
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:
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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