Page 72 - MetalForming April 2013

You and The Law
By Douglas B.M. Ehlke
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 com- plaints with coworkers. In what is becoming a very contro- versial 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 “pro- tected 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 main-
taining and applying a rule prohibiting employees from dis- cussing ongoing investigations of employee misconduct violated Section 8(a)(1) of the NLRA Act. The board deter- mined that the Banner Medical Center’s “rule” had a rea- sonable 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 com- plaints under investigation.
Employers can still conduct internal investigations of
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented met- alforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South
Federal Way, WA 98003-3705
tel. 253/839-5555
fax. 253/874-5475
dehlke@ehlkelawoffices.com
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 excessive- ly 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 deci- sion. 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 whistle- blower investigative staff to look for a list of employer safe- ty-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 discrimi- natory 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 nonuni- form safety-rule discipline; and
• Having team safety incentives with such overly large prizes that they invite peer pressure to discourage an indi- vidual from reporting a workplace injury, even if uninten- tionally 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 sur- rounding the injury. Reporting an injury is always a protected activity. OSHA views discipline imposed under such a poli- cy against an employee who reports an injury as a direct vio- lation 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
70
MetalForming/April 2013
www.metalformingmagazine.com