The National Labor Relations Board has just declared another common employer practice to be a violation of section 8(a)(1). This time it’s the practice of asking employees who have made a complaint of some sort to the employer not to discuss their complaint with coworkers while the investigation is in progress. The Board found that this practice has a chilling effect on employees’ exercise of their rights under section 7 of the National Labor Relations Act which includes acting concertedly for mutual aid and protection. The Board stated that an employer must show that it had a legitimate business justification that outweighs employees’ section 7 rights in order to make such a request and that simply wanting to minimize disruption in the workplace is not sufficient. In order to meet the standard for a legitimate business justification the Board requires a legitimate concern that witnesses will be intimidated, evidence destroyed or fabricated, or other similar interference in the investigation will occur. While the NLRB indicated that you can probably request that complaints of harassment, discrimination, violence in the workplace or criminal activity not be discussed, the EEOC has since stated that it is a violation of Title VII to prohibit employees from discussing harassment or discrimination in the workplace. As most internal investigation policies and procedures include provisions requiring employees to refrain from discussing ongoing investigations, it is time to have your policies and procedures reviewed by labor and employment counsel to bring your policies in line with the guidance from the EEOC and NLRB.
This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.