Workplace Investigations

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The #MeToo movement has placed sexual harassment on the front pages of newspapers, has galvanized some states to reconsider their own sexual harassment laws, and has encouraged employers to take a closer look at their policies and procedures. With such heightened awareness of sexual harassment, employers may feel an inclination to resolve doubts in favor of the accuser.  A recent Second Circuit decision, however, illustrates a counterweight to this outlook.
Continue Reading Sexual Harassment Claims: Follow Policy and Procedure or the Accused May Become the Accuser

In American Baptist Homes of the West d/b/a Piedmont Gardens (“Piedmont Gardens”), 362 NLRB 139 (June 26, 2015), the NLRB overruled longstanding precedent protecting the confidentiality of employee witness statements and adopted a new rule that balances the union’s need for the witness statement with the employer’s “legitimate and substantial confidentiality interests.” …
Continue Reading NLRB’s New Rule May Change the Way Employers Conduct Investigations

Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s Office of the General Counsel recently released a memorandum providing additional guidance on the confidentiality of internal workplace investigations.  Banner Health held that to require confidentiality of investigations, an employer must show more than a generalized concern with protecting the integrity of its investigations.  Rather, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”…

Continue Reading NLRB Releases Guidance On Workplace Investigation Confidentiality Policies

The NLRB has again asserted its willingness to encroach upon employers’ long standing legitimate employment policies in a non-unionized workforce.  In Banner Health System, 358 NLRB No. 93 (July 30, 2012), the Board held that a blanket policy prohibiting an employee from discussing an ongoing investigation violates section 8(a)(1) of the National Labor Relations Act.
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Continue Reading NLRB Finds That Requesting Confidentiality In An On-Going Workplace Investigation Violates NLRA