The National Labor Relations Board is continuing its assault on commonplace HR policies and practices. Recently, the Board took the position that an at-will provision in an employee handbook may violate the National Labor Relations Act. It also ruled that an employer’s after-hours “no access rule” violated the Act.
Now the Board has ruled in a 2-1 decision that an HR consultant’s routine request that employees who make a complaint not discuss the matter with co-workers while the investigation is ongoing constitutes an “unlawful restraint” on employees’ Section 7 rights to discuss workplace concerns! The Board found that the employer’s “generalized concern” about the integrity of its internal investigations did not outweigh the rights of employees to engage in concerted activities that are protected under the NLRA.
The Board held that an employer must take a case-by-case approach to determine whether certain factors exist before instructing employees not to discuss the investigation with co-workers. These factors include whether a witness “needs protection,” evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover-up.