- Written by Helen Braginsky
In its efforts to further restrict employers from conducting their business operations, the National Labor Relations Board (NLRB) issued two decisions which not only have a major impact on the confidentiality of employer investigations into employee misconduct, but also undermine an employer’s ability to keep witness statements obtained during the investigation confidential.
In Banner Health System, 362 NLRB No. 137, an employee whose normal equipment was not functioning was given alternate instructions by his supervisor on how to carry out his duties. The employee made an internal complaint to the employer, citing health and safety concerns pertaining to those instructions. During the interview, the employee was asked not to discuss the matter with his co-workers while the investigation was ongoing.
The NLRB held that this request that the employee maintain confidentiality violated section 7 of the National Labor Relations Act (NLRA). Section 7 protects employees’ abilities to engage in concerted activities for mutual aid or protection concerning the terms and conditions of employment. Encompassed in section 7 rights is the ability for employees to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers. Such discussions are vital to employees’ ability to aid one another in addressing employment terms and conditions with their employer.
- Written by Carl Larson
The California Supreme Court recently issued a favorable ruling for employers who catch an employee working elsewhere while out on protected leave under the California Family Rights Act (CFRA). In Richey v. Autonation, Inc., Richey received his employer’s employment manual that prohibited outside employment while on medical leave. Shortly before taking CFRA leave, the employee had opened a seafood restaurant.
While he was on leave, his employer discovered that he was working at that restaurant, sweeping, answering phones and hanging signs. In response, the employer sent him a letter reiterating its workplace policy prohibiting such outside employment. When Richey ignored these letters and warnings, his employer terminated him. Richey sued for multiple claims under the California Fair Employment and Housing Act (FEHA) and the CFRA.
The employer successfully compelled Richey’s case to arbitration, where the arbitrator’s award was for the employer. The arbitrator ruled the employer could terminate him and refuse to reinstate him if it had an “honest belief” that he was abusing medical leave or not being truthful about his outside employment. The arbitrator also found that Richey had violated the workplace policy against outside employment while on leave.