Gov’t Agency: Employers Cannot Routinely Prevent Employees From Talking To Each Other During Internal Investigations

A government agency ruled on July 30, 2012 that employers cannot routinely forbid their employees from talking to each other during an investigation.  This kind of prohibition, common in most workplaces, may interfere with employees’ rights to cooperate and coordinate efforts against unfair workplace practices.  Click here for the actual ruling.  (Once at the site, click on the link titled “Board Decision.”)

The agency, known as the National Labor Relations Board (NLRB), is charged with preventing employers from engaging in unlawful labor practices.  It found that while employers may sometimes be justified in ordering employees not to talk to each other during an investigation, this kind of demand should only be used where truly justified. Examples where it might be okay? Where a witness may need protection from coworkers; where evidence is in danger of being destroyed; where there is a great risk that employees might be fabricating evidence; or where there is a genuine risk of a coverup.

The NLRB found that a blanket rule against communications between employees during an internal investigation violates a law against interfering with an employee’s right to act collectively with other employees against unlawful employer practices.

It also found that even a “suggestion” to an employee that he or she refrain from discussions with coworkers might violate the law.  Obviously, even a “suggestion” or “hint” from a supervisor or manager is likely to discourage the employee from coordinating efforts with others.

Employees who are fired or who otherwise suffer adverse action, because they violated one of these unlawful rules, may have the right to bring a claim against the employer for resulting financial loss and hardship.    This ruling seems likely to lead to such claims because employers may be unwilling to abandon longstanding rules against employee communication during investigations.

Categories: Internal Investigations, National Labor Relations Act, Protected Concerted Activity, Retaliation

Tags: , , , , , , , , , , , , , ,

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