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Ask The Lawyer By: Daniel A. Gwinn, Esq

| March 18, 2018

QUESTION: An employee filed a complaint with our Payroll Department, stating his hours had been incorrectly calculated. We decided to investigate his claim and I met with him. I told him he should not discuss any information related to the investigation until it’s over. This is our policy; it’s in the Employee Handbook. He told me we couldn’t stop him from discussing the situation, and that our policy was against the law. What’s wrong with keeping investigations confidential, aren’t we supposed to do that?

ANSWER: There’s nothing wrong with asking employees to keep some information about some on-going investigations confidential. The problem with your company’s policy is that it prevents workers from talking about any on-going investigation, whether the subject of that investigation is sensitive and confidential or not. A rule that broad is going to impact employees’ rights to share employment-related information with each other, which in turn could affect their right to organize collectively, and therefore violate their rights under the National Labor Relations Act (NLRA).

Under Section 7 of the NLRA it is an “unfair labor practice” to “interfere with, restrain, or coerce employees” who are exercising their “right to self-organization … and to engage in other concerted activities for the purpose of … mutual aid or protection.” When employers investigate worker complaints, they must walk a very careful line. Some investigations – like those into sexual assault or abuse – may very well involve confidential information which shouldn’t be shared with all and sundry. But where a ban on talking about an investigation could reasonably be understood to prevent a worker from talking about the terms and conditions of employment, a central right under the NLRA, the rule goes too far.

Courts recognize that some federal and state antidiscrimination statutes and guidelines require confidentiality in investigations. A firm would have a legitimate business justification for a rule asking workers to keep mum “in the context of a particular investigation or particular types of investigation.” Hyundai Am. Shipping Agency, Inc v Nat’l Labor Relations Board, 805 F.3d 309, 314 (D.C. Cir. 2015). But a rule that bars talking about information revealed in a whole class of sensitive situations – all cases involving sexual harassment, or all cases involving abuse, or racial discrimination, for instance – will still run afoul of the NLRA. The need for confidentiality, must be determined on a case-by-case basis, “based on objectively reasonable grounds for believing that the integrity of the investigation will be compromised without confidentiality.” Banner Health System v National Labor Relations Bboard, 851 F.3d 35, 43; citing Banner Estrella Medical Center, 326 NLRB 137, at 6 (2015).

In the case or your worker, who has made a complaint that goes right to the bedrock of conditions of employment – pay – a ban on talking about the issues is clearly against the law.

To avoid potential legal problems, it’s a good idea to ask an attorney to review your Employee Handbook periodically. The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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