The National Labor Relations Board (NLRB) has been quite active this year, and it shows no signs of slowing down. As discussed in prior E-lerts, the NLRB is devoting a significant amount of attention to concerted activity under Section 7 of the National Labor Relations Act (NLRA), and is aggressively working to expand its definition. Section 7 guarantees all employees, among other things, the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Importantly, Section 7 applies irrespective of whether your worksite is unionized.
Recently, at-will clauses and rules regarding confidentiality of workplace investigations have come under NLRB scrutiny.
At-will clauses are a staple of employee handbooks. Employment at-will means that an employee may be fired at any time, for any lawful reason, with or without notice. This provision helps protect employers from an employee who claims that he was promised employment for a specified period of time and could only be terminated for cause. According to two recent NLRB decisions, however, requiring an employee to sign an at-will acknowledgement form violates the employees right to engage in Section 7 concerted activity.
The clash between at-will clauses and the NLRA first emerged in February of this year in American Red Cross Arizona Blood Services Division, Case 28-CA-23443. The case involved an at-will employment acknowledgement, which stated in part, I further agree that the at-will employment relationship cannot be amended, modified or altered in any way. The NLRB Administrative Law Judge acknowledged it was questionable whether the language expressly restricted Section 7 activity, but held that there was no doubt that it violated the NLRA because employees could reasonably construe the language to prohibit Section 7 activity, that is, the right to engage in concerted activity to change the at-will status. The American Red Cross was ordered to remove or revise the language, notify all employees in writing that the provision had been revised or rescinded, post a notice advising employees of their rights under the NLRA and assuring them it would respect those rights.
Just weeks later, the NLRB's General Counsel issued a complaint against Hyatt Hotels (Hyatt Hotels Corporation and Unite Here Intl Union, Case 28-CA-061114), alleging that Hyatt's policy of requiring employees to sign a form acknowledging the employees at will status violated the NLRAs protection of concerted activity. The acknowledgement form stated in part, [T]he at-will status of my employment . . . can only be changed in a writing signed by the employee and one of the two named Hyatt executives. The dispute was settled prior to a hearing before an Administrative Law Judge, with Hyatt agreeing to remove these provisions, notify employees that the provision had been removed, and posting a notice assuring employees that it would not violate their NLRA rights.
Investigation Confidentiality Rules
It is standard practice for employers to instruct employees to maintain the confidentiality of workplace investigations, based on legitimate concerns that if employees talk to each other about an investigation, then they may dishonestly align their statements or even conceal evidence. More importantly, confidentiality encourages victims to come forward. The NLRB has, nonetheless, recently concluded that an employers concern with protecting the integrity of workplace investigations is insufficient to outweigh employees Section 7 concerted activity rights.
In Banner Health System, 358 NLRB No. 93, decided July 30, 2012, the NLRB held that an employer representative who was conducting a workplace investigation violated employee Section 7 rights by telling the complaining employee not to discuss the matter with other employees while the investigation was pending, even where the prohibition is not accompanied by a direct or specific threat of disciplinary action. The NLRB ruled that in order to minimize the impact on Section 7 rights, it was the [Employers] burden to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up. The NLRB's decision suggests that employers cannot, as a matter of course, instruct employees to keep investigations confidential, but rather such instructions should only be used on a case-by-case basis when justified by particular facts.
To schedule a review of the at-will language or investigation confidentiality rules in use by your company, or for any employment-related issue, please contact your Elarbee Thompson attorney.