The National Labor Relations Act (the Act) is the federal law designed to protect employees engaged in union and other concerted activities.  But these protections do not just apply to unionized employees - they extend to virtually all private sector employees, unionized or not.  One of the rights the Act protects is an employee's right to discuss matters of common interest such as wages and working conditions.  An employer therefore commits an unfair labor practice if it prohibits or interferes with those discussions.

In a very recent case, the National Labor Relations Board ('NLRB'), the federal agency that enforces the Act, applied this principle to a Human Resources representative responsible for investigating employee complaints.  When an employee came to her with a complaint, she had a practice of routinely instructing the employee not to discuss the matter with coworkers while she was investigating it.  Her intent was to protect the integrity of the investigation.  The NLRB found her conduct to be unlawful, stating that a generalized concern about maintaining the integrity of an investigation was not sufficient to justify prohibiting an employee's right to discuss the matter during an ongoing investigation.

Rather, according to the NLRB, to prohibit such discussions, the employer must have a legitimate business justification that outweighs an employee's rights.  Instead of having a blanket approach, the employer must conduct individualized analyses to determine whether witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated or actions needed to be taken to prevent a cover up.  Because the employer here did not do that, the NLRB found that it had violated the Act.  Click here to view the decision.

This decision may be problematic because it may be difficult at the very start of an investigation to know whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or actions need to be taken to prevent a cover up.  Often, those dangers are not apparent until the investigation is well underway, when it may be too late to preserve the integrity of the investigation.  Nevertheless, employers should use caution when instructing employees to remain silent during an ongoing investigation.

© 2012 Perkins Coie LLP