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Ruling attacks employer’s confidential investigation

| August 1, 2012 | News & Comment

An employee has come to you complaining about something that has happened to them at work—like accusing a supervisor or co-worker of harassment or discriminatory treatment. Because an employer has to take complaints like this seriously, you spring into action looking into the employee’s allegations. You want to get to the truth, so you interview the complaining employee, as well as any other employees who may have information relating to the complaint. You ask the complaining employee and the other employees you interview not to discuss the investigation or their interviews with anyone. That’s reasonable, protects the integrity of the investigation, and increases the chances of getting to the bottom of the complaint—right? Not according to the National Labor Relations Board and its July 30th decision in Banner Health System.

When the hospital’s Autoclave steam sterilizer was out of commission, James Navarro’s supervisors at the Banner Estrella Hospital in Phoenix, Arizona, directed him to sterilize labor and delivery surgical instruments using hot water from a break room coffee machine and a different type of sterilizer. Navarro worried this coffee machine sterilizing protocol was not a good idea and expressed his concerns to his supervisor. Navarro’s supervisor became angry and accused him of disobeying directions and acting insubordinately.

Navarro then met with HR representative JoAnne Odell. Navarro explained the circumstances and told Odell he believed his job was at risk. Odell took Navarro’s complaint seriously. In addition to talking with him, Odell interviewed co-workers and supervisors about what had happened. During the investigation, Odell asked Navarro and the other folks interviewed not to discuss the matter.

The National Labor Relations Act protects employees’ rights to take part in concerted activity. That protection applies whether you are a union or non-union employer. Concerted activity can include co-workers discussing concerns and complaints about their employer, their supervisor, or their job. The NLRB ruled that the employer’s instruction to Navarro and others that they not discuss the investigation while it was ongoing violated their right to take part in concerted activity.

So, if the NLRB continues down this path, employers get to choose between protecting the integrity of internal investigations of employee complaints or running the risk of a charge they are violating employees’ rights under federal law. Does that make sense to you?

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Charlie Plumb

About the author

Charlie Plumb is a labor and employment attorney with the McAfee & Taft law firm. He represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship. He also has extensive litigation experience before federal and state courts, regulatory and administrative agencies, and in arbitration matters involving claims of discrimination, wrongful discharge, retaliatory discharge, breach of contract, and constitutional law violations.

As part of his labor practice, Charlie represents unionized employers in collective bargaining negotiations with labor unions, arbitrates grievances, and defends management against a variety of claims before the National Labor Relations Board and Department of Justice and in state and federal courts. He also represents employers who seek to maintain a non-unionized workforce by counseling management on union avoidance strategies and by providing training and advice to management and supervisors. His clients include numerous municipalities throughout Oklahoma and companies engaged in the manufacturing and distribution, construction, energy, public utility, technology and business services industries.

Charlie is a member of the American Bar Association’s Labor and Employment Law Section and the Oklahoma Bar Association’s Labor Council. He is also the designated representative of McAfee & Taft as the exclusive member firm representing Oklahoma in the Employers Counsel Network, a nationwide affiliation of leading law firms providing legal assistance and representation to employers.

Charlie is a frequent speaker and author on workplace issues. He is also co-editor of the Oklahoma Employment Law Letter, a monthly review of new court decisions, regulations and laws that affect state employers.

Charlie’s achievements have earned him inclusion in The Best Lawyers in America (labor and employment law), Oklahoma Super Lawyers (employment and labor, civil litigation defense), Benchmark Litigation and Chambers USA Guide to America’s Leading Lawyers for Business, where he has been lauded as “an impressive public speaker who utilizes his vast experience to effectively defend clients.” Researchers at Chambers & Partners also quoted market observers as admiring him for his “practicality of advice and specialized knowledge of complex legal issues,” with sources commenting that he “immediately commands respect, is always up to date and knows how to handle a problem.”

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