Could asking an employee to be discreet violate the labor law?

August 9, 2012 at 7:54 am Leave a comment

Writing the blog has been extremely cathartic for me, since now instead of muttering and yelling at the news every morning I can simply let you know how I feel.  But occasionally, I come across something that makes me pull what little hair I have left out even with the blog.  This is one of those cases, and I’m sure your HR people will feel the same way once they get the news.

The scenario is this:  suppose you have an employee who brings a concern about a supervisor’s direction to your attention and feels so strongly about it, he is being borderline insubordinate in refusing to carry out the request.  For instance, let’s say that someone feels that a new interest rate promotion might pose a long term risk to the safety of the credit union and is refusing to put together a marketing plan.  After getting the employee’s side of the story, your HR director tells the employee to keep the discussions confidential pending a review, as is company policy.  To me, this is just a common sense request.  But to the National Labor Relations Board, this request may constitute a violation of any employee’s right to tell fellow employees about concerns with workplace conditions. 

That’s the gist of a recent ruling of the NLRB.   The labor law allows all employees whether they are unionized or non-unionized to engage in concerted activities with regard to workplace conditions.  A hospital’s HR director heard a complaint from an employee who was concerned that his supervisor’s order violated federal regulations related to the manner in which surgical equipment should be cleaned.  The HR director told the employee not to talk about his concerns with other employees or supervisors pending the completion of her investigation.  The hospital justified the policy, as I would have, on the grounds that its procedures help ensure the integrity of the investigation, but the high priests of labor regulations concluded that the “generalized concern with protecting the integrity of the investigations is insufficient to outweigh the employees rights”  under the labor law.  As a result, the employer was ordered to eliminate from its policy a provision which categorically forbid employees from discussion of, among other things, disciplinary actions.  The proper procedure was for the HR director to first demonstrate how his concerns for confidentiality outweighed the employee’s rights to share his concerns.  Only after this evaluation can an employee be asked to keep investigations confidential. 

As pointed out in a blog post from the Bond, Schoeneck and King law firm which tipped me off to this decision, “. . . it would be prudent for employers to make an individualized assessment in each case before deciding whether to ask an employee not discuss a matter with co-workers.”

One quick thought, it’s rulings like this that make people hate lawyers for good reason.  The workplace is not a court room and should not be treated as one.  Every new regulation or administrative finding restricts the ability of employer and employees to use common sense and to be held accountable only when their bad judgment results in legitimate wrongdoing.

Entry filed under: Compliance, Legal Watch, Regulatory. Tags: , , , , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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