The NLRB’s Bad Decision

About a third of the work I do is workplace investigations – everything from culture reviews and employee misconduct to harassment.  I love them!  Recently, the National Labor Relations Board issued a new decision that greatly affects employer policies around investigations.  Essentially, the Board overturned a decision that allowed employees to talk about an ongoing investigation.  Now, employers can prohibit employees from talking about an investigation.  In fact, employees can now get fired for talking about it.

I’m not going to lie.  I really don’t like this decision.  I know, I know.  My perspective is the polar opposite of nearly every other investigator out there.  But hear me out.  I’ve got two reasons why this decision is bad for employers and employees.

First, #metoo took off when women talked with each other about their experiences.  When Jodi Kantor, Megan Twohey, and Ronan Farrow started meeting with women in Harvey Weinstein’s sphere, the more women they spoke to, the more harassment they found.  Once one person came forward on the record, it was easier for others to come forward and share how much a monster Harvey really was.  Now, there are 90 women who have come forward.  The same thing happens in companies that don’t end up in headlines.  When one person comes forward, others follow suit.  (Pun not intended.)

Harassment targets fear speaking out alone, and intentionally, harassers isolate and separate their targets so they feel all alone and that no one will believe them.  When targets know someone else has had a similar experience and they’re willing to report it too, they may even come forward together.  So, knowing about others and talking with them gets targets to report.  Something employers want, right?

Second, during an investigation, it is incredibly common to have reluctant witnesses – those who give you one-word answers and are all jittery when they sit across from you.  You listen to them and know they’re not sharing everything.  No matter how much prodding you do, they clam up.  If the investigation lasts long enough, the witness may come back, ask to speak with you again, and this time, they share more.  They may even share everything, including their experience being a target of harassment or provide the evidence you’ve been looking for.  When you ask why the change of heart in coming forward, the answer is often that they spoke to someone else and they felt they needed to “do the right thing.”  It makes it more difficult to evaluate them as a witness, but if they didn’t speak with anyone, we’d never get their information.

Now, other investigators have argued that they don’t want employees to chat with each other because they could “sync” stories or lie and that would interfere with their investigations.  I get that, but I’d rather have employees come tell me everything knowing that they’re not the only ones sticking their necks out.  And, if employees sync their stories, the investigator will hear the phrases suggesting they’ve colluded and are not genuine.  We’re trained in this.  We have experience in this.  We see it a lot.  We should be able to handle this separate from a policy prohibiting employees talking that puts their jobs at risk.

In their new decision, the Board argues that we can’t offer employees confidentiality in what they tell us if the employer doesn’t prohibit employees from talking about the investigation.  But no investigator says, “Well, Suzy told me XYZ” – we don’t share what people tell us.  In most cases, I don’t even share names with decision-makers.  If I told decision-makers exactly who said what, retaliation would be a real possibility.  So, I tell folks I interview that I don’t share names, and this comforts them, freeing them to open up.  If they talk with coworkers, they’ve picked people they’re comfortable with.  I share the important facts with decision-makers that they need to make any decision they need to.  So, the Board’s argument is hooey.

The National Labor Relations Act protects employees from discipline (including termination) when they get together to talk about the terms and conditions of employment.  This was the basis of the decision the Board overturned.  In some ways, the Board’s new decision feels like a response to the #metoo movement and an attempt to keep employees from talking about their experiences by allowing employers to have strict policies against employee talking about an investigation.  And, this is a shame.  Employers, trust your investigators to handle the information you do not need to adopt a policy in accordance with the Board’s new decision.  I recommend against it.

 

Photo by Steve Halama on Unsplash

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