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Employer Violates NLRA by Issuing Blanket Rule Directing Employee Not to Discuss Investigation with Co-workers

May 21, 2013 by

In a recent labor law ruling, the National Labor Relations Board (NLRB) found flaws in the standard Human Resource practice of prohibiting employees from discussing on-going investigations related to protected activity.  Going forward it appears that employers will need to provide justification for prohibiting employee discussions of on-going investigations.

The ruling came in a case where a hospital technician was disciplined after he complained about sterilization practices.  The Board dismissed the complaint that the employer retaliated against him for engaging in protected activity, but the Board nonetheless found a flaw in the employer’s investigation procedure. During its investigation, the company’s human resources officer instructed the employee not to discuss the matter with co-workers while the investigation was ongoing. The human resources officer routinely asked all employees making a complaint not to discuss matters with co-workers. The Board held that this type of blanket prohibition violates the NLRA.

The Board started its analysis by noting that when employees discuss their workplace complaints with each other they are engaged in a protected concerted activity that cannot be prohibited.  The Board then placed the burden on the employer to prove that “a legitimate business justification” for its “Do Not Discuss” order outweighed employees’ right to engage in concerted activity. The Administrative Law Judge had accepted the employer’s rationale that its prohibition was justified by a concern with protecting the integrity of its investigations. However, the Board found this “generalized concern” did not outweigh Section 7 of National Labor Relations Act that gives employees’ the right to “self-organization,”  that is to act in concert such as meeting together to discuss working conditions.

The Board set a fairly high standard to justify a prohibition on employee discussion of workplace investigations into employee complaints, thus upholding one of the basic rights established in the practice of labor law. An employer must first determine whether in a given investigation witnesses need protection, whether the evidence is in danger of being destroyed, whether testimony is in danger of being fabricated, or if there is a need to prevent a cover-up. The employer’s blanket prohibition in this case did not meet these requirements.

Labor Law and employee rights are specialized areas of practice that require on-going education and experience.  You can visit the Beeson, Tayer and Bodine (BT&B) website for more information and to find an experienced labor and employment rights attorney.


*Banner Health System, 358 NLRB No. 93 (2012). Summary provided by BT&B

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