In recent months, the National Labor Relations Board (NLRB) has grabbed the attention of many employers, union and non-union alike. NLRB decisions and guidance documents have found that a number of very common company policies and practices violate employee rights under Section 7 of the National Labor Relations Act. Section 7 protects the rights of employees to communicate with co-workers about wages and other working conditions and to act together, including by supporting or joining unions.

In a decision on July 30, 2012, the NLRB continued the trend of finding legal fault with practices that may sound very familiar to you. The decision is Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438. One of the issues in the case was the company's routine practice when conducting internal investigations to ask the complaining employee and all witnesses interviewed not to discuss the matter with co-workers while the investigation was ongoing. Sound familiar?

The employer argued that it had a right to request employees not to discuss ongoing investigations in order to protect the integrity of the investigation. This is a common employer concern. Widespread discussion of an ongoing investigation can compromise future interviews by making people aware of the issues before they are talked to. Talk in the workplace about an ongoing investigation could also cause employees to feel intimidated about cooperating. The NLRB found the employer practice an illegal restriction on the rights of employees to discuss workplace issues among themselves. The NLRB considered but rejected the employer's argument that the caution about confidentiality was merely a request, not a mandatory rule. The NLRB left the door open for an employer in some cases to justify a prohibition on employee discussions of ongoing investigations. But, the NLRB said to justify that restriction, the employer would have to be able to show a specific legitimate business justification, not a generalized concern. As an example, the Board said that the employer should be required "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 position puts employers in a tough spot. How do you protect the integrity of an ongoing investigation without asking witnesses to maintain confidentiality at least while the investigation is ongoing? Employers should treat each investigation on an individualized basis. If a decision is made to request confidentiality during an investigation, the employer should document its specific business reason for requesting confidentiality in that case.

The Banner Health System case is just the most recent in a string of NLRB actions attacking what are very common workplace policies. Earlier this year, the NLRB considered handbook disclaimer language about employment at will. The language at issue in both cases was similar to this:

Employment at the company is at the will of the parties. That means that you or the company can end the employment relationship at any time for any reason. The at-will nature of the employment relationship at this company cannot be changed except by a written agreement signed by the President.

Sound familiar?

In two separate actions earlier this year, the NLRB made clear that it considers disclaimer language like this to violate employee's Section 7 rights. In the view of the NLRB, disclaimers like this make it seem to employees that they have no ability to change the at-will nature of their employment, such as by joining a union and perhaps getting a labor contract that might limit discharge to for-cause circumstances. The NLRB theory is that the disclaimer language will "chill" employees from engaging in concerted activity or joining unions because they may feel they cannot change their employment-at-will status by doing so.

With due respect to the NLRB, in my opinion there is a fundamental flaw in this reasoning. The disclaimers simply say that employment at will cannot be changed except by agreement of the company at a high-management level and in writing. That is true under any circumstance, whether it be union or non-union. Even if employees are union-represented a change in the employment-at-will status will not occur unless the company agrees. If a company with union representation changes the employment-at-will status, it is generally done in writing and with the Company's agreement in the collective bargaining agreement. It cannot be forced on the company by the union.

This position of the NLRB also puts employers in a bind. Do you leave employment-at-will disclaimers out of your handbook, and face the risk of an employee claim that some high-level manager made an oral promise of guaranteed employment for a specific term or other protections? Decisions like these and the Banner Health case will have employers scrambling with their counsel to find creative and legal ways to achieve their legitimate business aims.