While many have been enjoying well deserved summer vacations, the National Labor Relations Board (“NLRB”) has been busy. In the past two weeks the NLRB has issued decisions regarding investigative confidentiality directives and the permissible scope of the well-recognized “at-will” statement.
- Confidentiality Directives During Internal Investigations
In Banner Health Systems d/b/a Banner Estrella Medical Center and James Navarro, 358 NLRB 93 (2012), the National Labor Relations Board (“NLRB”) declared that a blanket statement to employees that the contents of a complaint and/or investigation should not be discussed with co-workers was in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”) as restrictive of an employee’s rights arising under Section 7 of the NLRA. 
In Banner Health Systems, an employee made a complaint concerning instructions he had received from his supervisor that he felt were not proper and would endanger patients. After the employee had made the complaint, he was told by the human resources consultant not to discuss the matter with his coworkers while the employer was investigating the complaint. The Administrative Law Judge (“ALJ”) found, among other things, that this prohibition was not in violation of Section 8(a)(1), the NLRB disagreed.
While it is generally a standard investigative protocol to advise an interviewee to keep the subject matter of the interview confidential during the investigative process, the NLRB found that the employer had failed to show that the desire for confidentiality out-weighed the employee’s Section 7 rights. Rather, the NLRB held that in order to minimize the restrictive nature of the prohibition on communication, the employer must first determine whether in any given investigation: “(i) witnesses needed protection; (ii) evidence was in danger of being destroyed; (iii) testimony was in danger of being fabricated; or (iv) there was a need to prevent a cover up.”
In light of the NLRB’s Banner Health Systems, decision, employers should be aware that mere protection of the investigation may no longer be sufficient to justify a blanket prohibition. Instead, an employer must make a case-by-case, witness-by-witness, determination of the above four factors before prohibiting an employee from discussing the investigation and/or complaint with his/her coworkers. Individually analyzing these four factors should ensure that the prohibition on discussion will be justified.
- Employment At-Will Statement in Employee Handbook Acknoweldgement
In American Red Cross Arizona Blood Services Region and Lois Hampton, Case 28-CA-23443, (2012) a NLRB Administrative Law Judge (“ALJ”) held that a statement in an employee handbook acknowledgment form concerning the permanence of the employee’s at-will employment status was in violation of Section 8(a)(1) of the NLRA as restrictive of an employee’s rights arising under Section 7 of the NLRA.
In American Red Cross, the employer’s Agreement and Acknowledgment of Receipt of Employee Handbook form contained the following language: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ noted that where an employer’s rule is likely to have a chilling effect on Section 7 rights, the Board may conclude that its maintenance is an unfair labor practice even in the absence of evidence of enforcement.
Analyzing the language in the handbook acknowledgment form under the two-step inquiry utilized for determining whether an employer’s rule violates the NLRA, the ALJ found that “in his view” there was no doubt that employees would reasonably construe the language to prohibit Section 7 activity. The ALJ found that the acknowledgment form was essentially a waiver in which an employee agrees that his/her at-will employment can never change, thereby relinquishing any rights to advocate concertedly, whether represented by a union or not.
While it remains to be seen whether this case will be reviewed by the NLRB, employers should be mindful of and review the employment at-will language contained in their employee handbooks and acknowledgment forms. One fix for employers is to ensure that your standard “at-will” statements do not include a permanent ban on future amendments – something akin to the language reflecting that the at-will employment status can be changed only with the approval of an officer of the employer should surface and/or simply omitting any reference regarding the permanence of the at-will status.