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The National Labor Relations Board (NLRB) has historically been a “union agency,” but it is now beginning to expand beyond that realm into non-union workplaces.

As background, the NLRB was created by Congress in 1935 through the National Labor Relations Act (NLRA). The purpose of the NLRA was to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.

The NLRB & Social Media Policies

The biggest ripples as of late created by the NLRB relate to social media policies, which have exponentially grown in popularity due to the social media boom. Issues arose because employees are allowed to engage in concerted activity, a right protected and enforced by the NLRB. As over-expansive social media polices came to the fore, the NLRB stepped up to provide guidance to employers on what can and cannot be included in social media policies. The “cannots” were policy provisions that infringed upon, or altogether blocked, an employee’s right to engage in certain forms of concerted activity.

The NLRB published 3 reports on social media policies before it provided a model policy.

** SPOILER ALERT! We will touch on this in more detail in later posts. **

The NLRB & Confidential Employer Investigations

It has been a longstanding practice in the employment context for companies (usually HR within companies) to conduct confidential investigations into employee complaints. The “confidential” aspect of these investigations concerns a company’s request to employees that they not discuss the investigation with their coworkers. The NLRB has come down on this practice as well.

In Banner Estrella Medical Center, the NLRB concluded that a company’s request to its employees that it not discuss the investigation with their coworkers to be a violation of the employees’ right to engage in protected concerted activity. In the case, the NLRB took issue with the company’s “generalized concern with protecting the integrity of investigations.” Instead, the NLRB stated, the company should have “first determine[d] whether any give[n] investigation witnesses need[ed] 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.” To the NLRB, these factors must be considered before ordering confidentiality.

We were surprised by the NLRB’s decision here, and we do not necessarily agree with it. Most companies’ employment policies include an internal complaint process that employees are to follow. The purpose of such policies is to give the company an opportunity to rectify any unlawful conduct in the workplace before it goes outside its walls, which employers should be doing.

The greatest weapon in an employer’s arsenal to eliminate unlawful conduct is the confidential internal investigation. Confidentially is usually key, as credibility is often an issue with complaints. The best way to determine who is telling the truth and who is not is to compare statements from employee-witnesses. The best way to ensure that the statements are not manufactured or the result of employee tampering is to keep employees from speaking to one another about the investigation. That’s just good ol’ common sense.

Our fear is that the NLRB’s ruling in this instance can significantly reduce the confidence level a company can have with the results of its internal investigation, because there is no way of knowing who has said what to who, or to know how much the investigation will be tainted.

While it appears that the NLRB is okay with confidentiality in certain instances, it’s an amorphous determination at best, at least right now, and going through the process of determining whether confidentiality should be enforced may not be practicable in all instances, particularly when an investigation has to be begun immediately or deals with particularly sensitive issues.

The NLRB & At-Will Employment Handbook Language

If you have an employee handbook and you’re not a contracted or union worker, chances are that it contains language stating that you are an “at-will employee” and that the language of the handbook, etc., should not be construed as creating a contract between you and the company. Pretty standard stuff.

Wisconsin is an “at-will State,” meaning that Wisconsin adheres to the at-will employment doctrine. Under the at-will employment doctrine, employers can fire employees at any time for any reason or no reason at all, so long as it is not unlawful. At the same time, employees can quit for whatever reason they choose, whenever they choose.

That said, according to the NLRB in American Red Cross Arizona Blood Services Region, employer’s handbooks cannot contain language stating that the at-will employment relationship cannot be altered. Specifically, it took issue with handbook language stating, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The reason is that such a provision “chills” employees’ ability to organize and form unions, which are not subject to the at-will employment doctrine.

So, if your company has such language in its handbook, it is probably the right time to get rid of it.

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