NLRB Again Makes It Harder for Employers to Manage Their Workforces

It's no secret that the National Labor Relations Board has been on a crusdade over employer investigations. The last several years have seen decisions that make it much more difficult for an employer to conduct workplace investigations, both in the union and non-union context.

Specifically, in 2014 in a case known as Fresh and Easy, the Board determined that a complaint by an individual employee relating to a personal Title VII issue (something that had little or nothing to do with the National Labor Relations Act) that triggered an employer investigation, somehow subjected that investigation to the full panoply of NLRA restrictions and requirements applicable to protected concerted activity.

Similarly, in a 2015 decision, Banner Estrela, the Board hamstrung an employer's attempt to preserve the integrity of an ongoing workplace investigation by determining that a confidentiality instruction to employees involved in the investigation violated their rights under Section 7 of the Act.

The Board continues its efforts to make it virtually impossible for an employer to conduct an effective internal investigation with its latest decision in American Baptist Homes of the West. In this case, the Board overruled a long-standing determination that employers were normally allowed to withhold from the union confidential employee statements collected as part of an investigation.  Instead, employers are now required to do a case-by-case assessment of whether there is: a risk of retaliation against the employee, a high potential for witness fabrication of evidence or destruction of evidence, and similar factors, before the employer can even offer confidentiality to a prospective employee witness.

As the dissent notes, this will greatly reduce the likelihood that an employee will even talk to an employer. Most employees in a union setting are well aware of the danger for retaliation by their coworkers in a situation where they are seen to be helping the company. Until the employer hears the employee's report, it will be impossible for the employer to determine whether the circumstances are such that one of the very narrow Board standards for non-disclosure will even be met. In other words, an employer cannot offer confidentiality to a reporting employee upfront, and without that offer of confidentiality, most employees will simply elect to keep quiet rather than risk making statement that will put them in a bad position with their union leadership.

There's no question that the Board's holding damages an employer's ability to manage its workplace and its employees. It is yet another reason why the stakes on unionization of the workforce get higher each year. With the Board working to effectively limit management's ability to discover what is happening in its workforce, it is more likely that employers will simply move to workforces that cannot be unionized - independent contractors, part time employees, and task-duration hires, that are less secure and potentially pay less.