When conducting internal personnel investigations into allegations of workplace misconduct or policy violations, employers routinely instruct employees who participate in the investigation process to refrain from discussing the investigation with their co-workers.  This “do not discuss” admonition is given for a number of legitimate business reasons, such as upholding the integrity of the investigation, promoting candor, and minimizing  disruption to the workplace.  A recent decision of the National Labor Relations Board (“NLRB”), Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012) has criticized this long-standing practice on the basis that a blanket “do not discuss” rule is inconsistent with an employee’s Section 7 rights to engage in protected concerted activity for mutual aid and protection.  While the Board objected to a blanket rule, it did recognize that there may be extenuating circumstances in a particular investigation that may warrant the issuance of a confidentiality instruction.  Unfortunately, the NLRB provided little guidance on what would constitute extenuating circumstances or how employers are expected to apply this rule in the context of a “real world” personnel investigation.

While this NLRB decision raises more questions than provides answers, there is one clear takeaway:  blanket “do not discuss” admonitions issued to employees during an internal personnel investigation may be unlawful under the NLRA.  Therefore, proceed with caution if you adopt a “do not discuss” rule in connection with your internal investigation.           

The Department of Labor ("DOL") has published updates of its existing FMLA forms.  The previous version of the forms expired on 12/31/11.  The updated forms expire on 2/28/15.  It is recommended that these DOL-approved forms be used in administering FMLA leaves.  The forms (listed below) can be found at  webapps.dol.gov/libraryforms/FormsByTitle.asp :

• Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave (WH-385)
• Certification of Health Care Provider for Employee's Serious Health Condition (WH-380-E)
• Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380-F)
• Certification of Qualifying Exigency for Military Family Leave (WH-384)
• Notice of Eligibility and Rights & Responsibilities (WH-381)
• Designation Notice (WH-382)

Eye-popping.  That’s the only way to describe the recent $168 million awarded to a California woman in a sexual harassment and retaliation case.  The woman, Ani Chopourian, worked as a physician assistant (“PA”) at a Sacramento hospital.   She had repeatedly complained to hospital management about the crude and boorish sexual comments and behavior displayed by the surgeons and other medical staff, as well as patient care concerns.  Ms. Chopourian’s complaints fell on deaf ears.  She was terminated days after her final complaint.  Although the hospital claimed she was terminated for poor performance, the jury didn’t buy it.  To add insult to injury, after Ms. Chopourian was terminated and secured another PA job with a medical group that saw patients at the hospital, the hospital revoked her hospital privileges.  This decision forced her new employer to terminate her employment and prevented her from getting another PA position in the community.  Not surprisingly, the hospital’s actions infuriated the jury.  The $168 million award – that included $125 million in punitive damages – was clearly meant to punish the hospital for what the jury perceived as vindictive and mean-spirited treatment of Ms. Chopourian.

This case underscores what any prudent employer should already know.  Take employee complaints of harassing and unprofessional behavior seriously.  No one should be able to get away with this type of conduct, whether the CEO, a highly acclaimed surgeon, or your most productive sales employee.   And, for gosh sake, think carefully (and consult with HR) before taking any negative personnel action against an employee who complains about this type of behavior shortly after a complaint is made, unless you have clear and overwhelming evidence of improper conduct.  Employers who forget these basic principles may have to answer to a jury one day. 

UPDATE:   Since my April 5, 2012 Legal Update, there has been yet another significant development that has put the NLRB posting requirement on hold.  The following announcement was posted on the NLRB’s website:

Important note: In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights under the National Labor Relations Act, which had been scheduled to take effect on April 30, 2012. In March, the D.C. District Court found that the agency had the authority to issue the rule. In April, the South Carolina District Court found that the agency did not. The agency will appeal the South Carolina decision.

Regional offices will not implement the rule pending the resolution of the issues before the court.

Of course, I will keep you advised of the outcome of this legal ping pong match.

After much legal wrangling, a federal court has ruled that the National Labor Relations Board (NLRB) can require private employers to post a notice that informs employees of their legal right to form a union.  The deadline for posting the new notice is April 30, 2012.

You can find more detailed information about the poster and download a free printable version of the poster (in English and Spanish) at the following link:  http://www.nlrb.gov/poster

Please feel free to contact me if you have any questions or concerns about this new requirement.