November 2014 Bar Bulletin
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November 2014 Bar Bulletin

Challenges at the Intersection of the NLRA and an Employer's Obligation to Investigate

By Trish K. Murphy


The National Labor Relations Board recently held that an individual employee who sought assistance from coworkers in raising a sexual harassment complaint to her employer was engaged in "concerted activity" for the purpose of "mutual aid or protection" within the meaning of the National Labor Relations Act.1

Through this expansion of the scope of activities protected under the NLRA, Fresh & Easy will increase the challenges of employers' harassment investigations. Employers should proceed cautiously whenever a workplace investigation involves protected activity.

Section 7 of the NLRA affords employees the right to engage in "concerted activities for the purpose of ... mutual aid or protection." Employers may not "interfere with, restrain, or coerce employees in the exercise" of these rights.2

In Fresh & Easy, the complainant sought her coworkers' assistance in raising a sexual harassment complaint to management. She informed the coworkers of her intent to complain and solicited three of them to sign a piece of paper on which she had handwritten a reproduction of content on a break room whiteboard she perceived as harassing. During the employer's investigation, the employee relations manager asked the complainant why she asked her coworkers to sign the paper and also instructed her not to obtain any further statements from coworkers.

The NLRB majority ruled that the employee engaged in concerted conduct by asking for the other employees to sign her paper and further held that because she was seeking the assistance or support of her coworkers in raising a sexual harassment complaint, her conduct was for "mutual aid or protection" and constituted protected activity under the NLRA. However, the Board concluded that under the particular facts of the case, the manager's question and instruction to the complainant during the investigation did not violate the employee's Section 7 rights.

Two board members vigorously dissented, focusing in part on the potential for Section 7 "process restrictions" to impact the investigations employers are obligated to conduct under other workplace laws, such as Title VII. Concern also was expressed about the holding creating greater potential for unlawful interrogation and surveillance in employer investigations.

While Fresh & Easy expanded the scope of protected activity, the investigation-related challenges are not new. Employers should look to Fresh & Easy and prior NLRB precedent for guidance in navigating the potential landmines.

Protected Activity

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