(April 8, 2015)

Rhoades McKee Protects Employer from Unfair Labor Charge –

Most employers strive to keep Human Resources matters such as the discipline or discharge of an employee confidential and often instruct other employees with knowledge of the matter to not talk about it with others. Some even formalize the instruction in their handbook with statements like: “Discuss work matters only with other employees who have a specific business reason to know or have access to such information.” While these instructions are often intended to protect the privacy of the impacted employee, they are an invitation for the employer to get hit with an unfair labor charge under either state or federal law. The National Labor Relations Act, applicable to private employers, prohibits an employer from interfering with, restraining or coercing employees from exercising their rights under the act, including the right to engage in lawful concerted activities for the purpose of mutual aid and protection. Michigan affords these same rights to public employees under the Public Employee Relations Act, MCL 423.210 (“PERA”). The federal (NLRB) and state (MERC) agencies charged with enforcing these statutes take the position that blanket bans on employee discussions about other employees either directly interfere with employee’s rights to engage in activities for their mutual aid and protection or indirectly “chill” protected activity if the rule or policy could be construed by employees as limiting their rights with the same illegal effect.  The thought is that if an employee cannot talk about what happened to a co-worker, the employee cannot enlist other employees to take action against unfair or inappropriate conduct by the employer. As a consequence the NLRB and MERC have long held that employees have the right to discuss discipline or disciplinary investigations involving fellow employees.

On March 17, 2015, the Michigan Court of Appeals recognized a limited exception to the general illegality of a no discussion rule, finding that a no discussion order can be appropriate when necessary to protect the sanctity of an on-going investigation. In Grandvue Medical Care Facility v Renkiewicz and Wood, (Case No. 319699) an unpublished decision, the Court was confronted with a no discussion order that was issued after allegations of abuse made by a resident with dementia had gone unreported to the State. Grandvue, represented by Rhoades McKee, asserted that the order was appropriate under the circumstances because it was critical that the state investigator hear each employee’s account of what happened from the employee’s own unbiased viewpoint.  Allowing a comparison of stories prior to meeting with the state investigator created the very real possibility that the investigator could believe that more employees knew about the allegations at the critical time than actually was the case. Furthermore, there was concern that “groupthink” or hearsay would influence employee’s first-hand accounts to the detriment of the investigation.

The Court of Appeals agreed with the employees that the no discussion rule adversely impacted their protected right to engage in lawful concerted activities. However, the Court then looked at Grandvue’s legitimate and substantial business reason for imposing the rule and found that it was narrowly tailored to protect the integrity of the investigation. As noted by the Court: “The importance of a reliable investigation was paramount considering the risk to residents and the possible sanctions as a result of a failure to report. Most importantly, [Grandvue] needed to sort out with certainty how its reporting policy was applied and perceived by the staff in order to ensure that any impediments to reporting possible abuse of residents were removed.“ This important purpose, when balanced against the limited intrusion on the employees’ protected rights, was determined by the Court to be sufficient to conclude that no unfair labor practice had occurred by issuance of the order.

While the Grandvue opinion affirms that not all no discussion orders will result in an unfair labor practice, employers must use great caution when attempting to restrict employee speech on work-related topics, even when doing so with good intentions. As evidenced by the  NLRB General Counsel Report on Employer Rules – issued just one day after the Grandvue opinion – it is clear that the NLRB will continue to aggressively challenge employee confidentiality rules and policies.

Even though limits on employee discussions about other employees or the wages, hours and terms and conditions of employment, either in the form of an oral order or a handbook provision, will seldom fit into the small safe harbor created by the Grandvue decision, the Rhoades McKee Human Resource and Employment Law Team can assist you in managing your employee communication policies without stepping into an unfair labor practice.

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