08.21.2012The National Labor Relations Board recently found that a hospital human resources consultant’s routinely asking employees filing internal complaints not to discuss the matter with coworkers while the investigation was ongoing violated the NLRA. The case is indicative of the NLRB’s recent increased focus on both unionized and non-unionized workplace policies and practices it deems unlawful. The Board holds that certain employer actions such as prohibiting workplace speech which could have an “adverse impact” on employees’ willingness to engage in protected activity are presumed unlawful. An employer defending against one of these actions bears the burden of proving a legitimate business justification that outweighs employees’ Section 7 rights. In Banner Health System, the NLRB was not swayed by the hospital’s claim that the request for silence was due to its concern over protecting the integrity of the investigation. The Board found that the hospital should have, prior to requesting that the employee remain silent, determined whether any investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated or there was a need to prevent a cover up. Only then might a prohibition on employee discussions have been permissible. Instead, the hospital’s “blanket approach,” as the NLRB characterized it, was insufficient. The Banner Health System decision demonstrates that by simply asking employees not to speak to coworkers about an ongoing misconduct investigation, an employer may unlawfully interfere with, restrain or coerce the employee from engaging in Section 7 protected activity. Employers, whether unionized or not, should be aware of recent NLRB decisions like Banner Health System and consider if workplace rules, whether written or oral, may unlawfully limit protected workplace speech. If you have any questions or for further information about placing lawful restrictions on employee workplace speech, please contact James J. McGovern, III, Esq., firstname.lastname@example.org or Douglas J. Klein, Esq., email@example.com, in the Labor Law Practice Group.