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NLRB: Employees are free to discuss their investigations with co-workers

On July 30, 2012, the National Labor Relations Board (“Board”), in a 2 to 1 decision, held hat a hospital violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by asking employees who make a complaint not to discuss the matter with co-workers while the investigation is pending. Section 8(a)(1) of the NLRA forbids employers from interfering with the exercise of an employee’s Section 7 rights, such as the right to organize, form, join, or assist a labor union, to bargain collectively, or to engage in other concerted activities for mutual aid or protection.

In the case involving Banner Health System, the hospital’s human resources consultant routinely asked employees who made a complaint not to discuss the matter with co-workers while the investigation was ongoing. It is common for employers to make this type of request to ensure confidentiality and to protect the integrity of their investigation. But even though this may be beneficial to the hospitals the request is generally insufficient to outweigh an employee’s Section 7 right to discuss workplace concerns with co-workers.

An employer’s blanket rule prohibiting employees from discussing ongoing investigations is not allowed. To determine which particular cases would warrant such ban, the employer must consider whether: (1) there are witnesses in need of protection; (2) evidence is in danger of being destroyed; (3) testimony is in danger of being fabricated; or (4) there is a need to prevent a cover-up.

Now employers should be cautious about what they say to employees during the course of a workplace investigation and refrain from making statements which ban employees from discussing their matters with others. If you have any questions about ways to ensure that your company is following the NLRB rules, contact the Harman Firm.

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