You and the Law
New Restrictions Targeting Confidentiality of Misconduct/Complaint Investigations
When companies investigate employee complaints against coworkers, harassment complaints or whistleblowing complaints, those employees being interviewed typically are directed to not discuss their complaints with coworkers. In what is becoming a very controversial decision for employers, and one that seems likely to spread to other regulatory laws and agencies, the National Labor Relations Board (NLRB) has ruled that an employer may not request employees who are the subject of internal investigations to not discuss the matter with coworkers while the employer conducts its internal investigation—unless the employer can prove (i.e. satisfy the NLRB) that confidentiality is required to further a “legitimate business interest.”
In Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, Case 28-CA-023438, July 30, 2012), to justify confidentiality and to not infringe on (union and non-union) employees’ Section 7 NLRA rights of “protected concerted activity” to discuss with coworkers such things as wages, hours and conditions of employment), employers must first determine, on a case-by-case basis, whether:
1) Witnesses need confidentiality protection;
2) Evidence was in danger of being destroyed;
3) Testimony was in danger of being fabricated; or
4) There was a need to prevent cover up.
In its decision, the NLRB ruled that the hospital’s maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct violated Section 8(a)(1) of the NLRA Act. The board determined that the Banner Medical Center’s “rule” had a reasonable tendency to coerce employees even without any threat of discipline, and regardless of whether workers were “asked” or “ordered” to not discuss the subjects or complaints under investigation.
Employers can still conduct internal investigations of complaints, including under attorney-client and attorney work product privileges. However, employer-investigation confidentiality rules, policies or practices will need to be reviewed and care taken to avoid outweighing or excessively restricting employees’ protected NLRA Section 7 rights to discuss their complaint with coworkers or supervisors.
Handbooks, policies, signing of written confidentiality pledges and internal investigation procedures or instructions should all be carefully reviewed in view of the Banner decision. A case-by-case, balancing-of-interests test will be required under Banner and later NLRB decisions.
OSHA Seeks to Avoid Discouraging Employees
from Reporting Accidents or Injuries
OSHA deputy assistant secretary Richard Fairfax has instructed OSHA field compliance officers and whistleblower investigative staff to look for a list of employer safety-incentive or accident-reporting policies that, in OSHA’s opinion, violate Section 11(c) of the OSH Act because they tend to discriminate against employees who report injuries or illnesses. The list of most common potentially discriminatory polices includes:
• Taking disciplinary actions against employees injured on the job, regardless of the circumstances surrounding the injury;
• Disciplining employees who violate an employer’s rule about the time or manner for reporting workplace injuries or illnesses, such as reporting them too late;
• Using a work rule as a pretext for discriminatory nonuniform safety-rule discipline; and
• Having team safety incentives with such overly large prizes that they invite peer pressure to discourage an individual from reporting a workplace injury, even if unintentionally doing so.
OSHA’s Fairfax describes the closer-look program vices as follows:
1) “OSHA has received reports of employers who have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. Reporting an injury is always a protected activity. OSHA views discipline imposed under such a policy against an employee who reports an injury as a direct violation of section 11(c) or FRSA. In other words, an employer’s policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury. In addition, such a policy is inconsistent with the employer’s obligation to establish a way for employees to report injuries under 29 CFR 1904.35(b), and where it is encountered, a referral for a recordkeeping investigation should be made.”
2) “In another situation, an employee who reports an injury or illness is disciplined, and the stated reason is the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. Such cases deserve careful scrutiny. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating section 11(c). OSHA recognizes the employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee’s right and ability to report. For example, the rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Nor may enforcement of such rules be used as a pretext for discrimination. In investigating such cases, factors such as the following may be considered: whether the employee’s deviation from the procedure was minor or extensive, inadvertent or deliberate; whether the employee had a reasonable basis for acting as he or she did; whether the employer can show a substantial interest in the rule and its enforcement; and whether the discipline imposed appears disproportionate to the asserted interest. Again where the employer’s reporting requirements are unreasonable unduly burdensome, or enforced with unjustifiably harsh sanctions, they may result in inaccurate injury records, and a referral for a recordkeeping investigation should be made.”
3) “In a third situation, an employee reports an injury, and the employer imposes discipline on the grounds that the injury resulted from the violation of a safety rule by the employee. OSHA encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place. In some cases, however, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. A careful investigation is needed. Several circumstances are relevant. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? The nature of the rule cited by the employer should also be considered. Vague rules, such as a requirement that employees ‘maintain situational awareness’ or ‘work carefully’ may be manipulated and used as a pretext for unlawful discrimination. Therefore, where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee in violation of section 11(c).”
4) “Finally, some employers establish programs that unintentionally or intentionally provide employees an incentive to not report injuries. For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘near misses.’ OSHA’s VPP Guidance materials refer to a number of positive incentives, including providing tee shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.”For a copy of this OSHA enforcement alert, contact Ehlke Law Offices. MF
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