If you have reviewed the updates from Larry, Brendan and Kailee, you know that the National Labor Relations Board (NLRB) is becoming more of an activist body. The NLRB continued its trend in Fresh & Easy Neighborhood Market, Inc. wherein it held an employee was engaged in "concerted activity" for the purpose of "mutual aid and protection" when she solicited statements from fellow employees to support her sexual harassment claim against another employee.

Does this affect you even if your workplace is non-union? Yes!

The National Labor Relations Act (NLRA) prohibits ALL employers from engaging in any actions that would chill employees' rights to engage in "concerted activity," which is defined by two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.

In Fresh & Easy, the employer avoided any penalty from the NLRB, but only because of a lucky turn of the facts. The case raises concerns for all employers.

The central employee, Ms. Elias, wrote her name on a whiteboard and indicated her interest in receiving "TIPS" training from the employer. Another presumably immature employee, changed a letter in "TIPS" and drew an insulting cartoon next to Ms. Elias' name. Prohibited from using cameras in the workplace, Ms. Elias drew a picture of the offensive material and asked three coworkers to verify that her drawing was an accurate rendition of what was on the whiteboard. She advised the coworkers that she intended to file a sexual harassment claim with the employer.

After filing the sexual harassment claim, the employer instructed her to refrain from soliciting any further statements while it conducted the investigation into her complaint. The concerning issue for all employers is that this employer's instruction could have been deemed a violation of the NLRA.

The NLRB first found that Ms. Elias was engaged in "concerted activity" because she sought the assistance of fellow employees. Even if she was acting with selfish intentions or if the coworkers disagreed with her complaint, Ms. Elias' request, on its own, established concerted activity.

The NLRB next found that her concerted activity was for the "purpose of mutual aid and protection" even though it was a personal complaint. Applying the maxim that "an injury to one is an injury to all," the NLRB held that an employee seeking the support of her coworkers in raising a sexual harassment complaint is acting for the purpose of mutual aid and protection of other employees.

This decision applies whether the employee seeks to raise the complaint directly to the employer, or to an outside entity. The decision applies even though the coworkers only participated in Ms. Elias' complaint to stop her from annoying them about it.

How did the employer escape any penalty from the NLRB when it instructed the employee not to obtain any additional statements from her coworkers in connection with the complaint? Because Ms. Elias allegedly altered the statements of the coworkers. The NLRB found that the employer's "narrowly tailored" instruction was a legitimate business justification to safeguard the integrity of an impartial and thorough investigation. In a footnote, however, the NLRB essentially warned that a blanket prohibition of discussing ongoing investigations of employee misconduct would violate Section 8(a)(1) of the NLRA.

What should an employer do?

The first step is to check your policy manuals to make sure the language complies with the "narrowly tailored" directive. Next, make sure that those responsible for investigating complaints are aware of the decision.