Monday, September 9, 2013

Trying to make sense of the EEOC/NLRB positions on workplace confidentiality

Seal of the United States Equal Employment Opp...
Seal of the United States Equal Employment Opportunity Commission. (Photo credit: Wikipedia)
The EEOC's position:!

The NLRB position:

Last year, the National Labor Relations Board made it much more difficult for employers to compel confidentiality among employees who participate in internal investigations.
[Banner Health System d/b/a/ Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012)]
        Facts. Banner operated a hospital located in Phoenix, Arizona, that provided inpatient and outpatient medical care. James Navarro worked for Banner as a “sterile technician” for about three years. The central processing sterile department (CPSD) employed 13 sterile processing technicians, operating 24 hours a day, 7 days a week with three shifts.
         Sterile processing technicians were responsible for the proper care and handling of all surgical instruments. These employees were required to utilize equipment according to the manufacturer's recommendations and hospital policy and perform all functions according to established policies, procedures, regulatory and accreditation requirements, as well as applicable professional standards.
        On Saturday, February 19, 2011, Navarro was working the day shift. Around 9 o’clock that morning, he learned that there was a lack of hot water and steam pressure. He spoke to an employee from the facilities department, who advised him that the steam pipe needed to be fixed, that there would not be any hot water, steam pressure, or heat.
        Navarro then contacted House Supervisor Cecilia Dicob and informed her of the problem. Next, Navarro called Ken Fellenz, senior manager of the CPSD department. Navarro informed him that he would not be able to sterilize the surgical instruments due to the broken steam pipe, and that there were six operating surgeries scheduled for that day. He also informed Fellenz that there were labor and delivery instruments that were going to be used and that the surgery department had clean surgical instruments for surgeries that day.
       Fellenz ordered Navarro to use the Sterrad machine to sterilize the labor and delivery instruments. The Sterrad machine was a low-temperature sterilizer that used hydrogen peroxide as the sterilant. The normal procedure was that the Autoclave, a large steam sterilizer, was used for the labor and delivery instruments. The Autoclave could not be used that day because of the lack of steam. Navarro told Fellenz that he was unaware that the Sterrad machine could be used, as it was not the established procedure.
        After speaking with Fellenz, Navarro began researching whether the Sterrad machine could be used to sterilize the labor and delivery instruments. Navarro found no documents supporting the use of the Sterrad machine. He then contacted Muriel Kremb, lead coordinator. Kremb told Navarro to use hot water from the coffee machine in the break room for the first step in the cleaning process of the labor and delivery instruments. Navarro stated that these procedures were not established protocol and that somebody could get sick. Navarro did not clean or sterilize the labor and delivery instruments that day.
       That same day, employee Ruth Hernandez called Navarro to inform him that she might be late. Navarro told Hernandez that she might not have to come in because there was no steam. Hernandez called Kremb and was told to report to work. When Hernandez arrived at work, Navarro expressed his concern about the procedures suggested by Fellenz and Kremb. Navarro stated that he could not find documentation to support the procedure recommended by Fellenz and Kremb.
        On February 20, when Navarro arrived at work he found that all the instruments had been cleaned. Navarro discussed with employee Curtis Wilks his concerns about using hot water from the coffee machine.  Navarro next spoke to House Supervisor Dicob on two occasions. Navarro told Dicob that he wasn't trying to be insubordinate but that he did not feel comfortable using the methods directed by Fellenz and Kremb, because this was not established procedure. Dicob answered that she was trying to find a solution to the steam pipe issue. After speaking with Dicob, Navarro spoke to Nurse Mary Hedges. Navarro told Hedges of the procedures he was instructed to follow and asked Hedges if she had ever seen or heard anything about using the Sterrad machine or using hot water from the coffee machine. Hedges shared Navarro's concerns.
      Around noon, Fellenz called Navarro and asked why Navarro had not used the Sterrad machine as instructed. Navarro stated that he was uncomfortable using that procedure. Fellenz stated that Navarro was refusing to follow instructions. Navarro stated that he was not refusing but was uncomfortable. Fellenz angrily stated that Navarro was not doing as instructed and that they would discuss the matter the following day.
      On Monday, February 21, Navarro met with JoAnn Odell, a human resources consultant. Navarro informed Odell that there had been no hot water available and that he was instructed by Fellenz and Kremb to use hot water from the coffee machine and the Sterrad machine. Navarro said that he was uncomfortable with this procedure and that he could find no documentation to support this procedure. Navarro expressed concern for his job.
       On the morning of February 21, Fellenz wrote a memorandum concerning the weekend and his conversations with Navarro. Convinced that Navarro had been insubordinate Fellenz met with Joan McKisson, director of peri-operative services. Fellenz told McKisson that he wanted to put Navarro on corrective action for failing to sterilize instruments as instructed by Fellenz. Fellenz and McKisson met with Odell in her office. Odell advised against corrective action because there was no procedure in place to support cleaning and sterilization as suggested by Fellenz. The three agreed that Navarro would be given a non-disciplinary coaching instead.
         Around 2 p.m., Navarro was called to McKisson's office. McKisson informed Navarro that Fellenz had accused him of refusing to follow his instructions. Navarro insisted that he had finally followed instructions. Nonetheless, Navarro was given a coaching. The coaching document states, “James refused to do as instructed by manager and lead tech which directly affected patient care.” On June 2, the company issued a memorandum stating that the coaching was removed and would not be part of Navarro's employment record.
          On February 24, Fellenz called Navarro into his office and gave him a yearly performance evaluation.  The performance review consisted of two sections: essential functions and behaviors. On the essential functions section, Navarro's grade was “fully meets expectations.” However, on the behaviors section, Navarro's rating was “not fully meeting expectations.” Navarro objected to the comments in the behavior section.
         Next Navarro filed an unfair labor practice charge, contending he was punished for engaging in protected concerted activity, when he consulted with co-workers and encouraged them not to deviate from what he considered the proper sterilization procedures.  At the subsequent hearing, the administrative law judge found that Navarro was disciplined not for concerted activity but for insubordination.
         The ALJ went on to examine the company’s procedures for investigating allegations of improper employee conduct.  He found, “The ‘Interview of Complainant’ form is not given to employees. During interviews of employees making a complaint, Odell asks employees not to discuss the matter with their coworkers while the investigation is ongoing. I find that suggestion is for the purpose of protecting the integrity of the investigation. It is analogous to the sequestration rule so that employees give their own version of the facts and not what they heard another state. I find that Respondent has a legitimate business reason for making this suggestion. Accordingly, I find no violation.”
          Every employee hired by the company is required to sign a confidentiality agreement. The confidentially agreement states:
I understand that I may hear, see and create information that is private and confidential. Examples of confidential information are:
-       Patient information both medical and financial,
-       Private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee,
-       Copyright computer programs, Business and strategic plans
-       Contract terms, financial cost data and other internal documents.
Keeping this kind of information private and confidential is so important that if I fail to do so, I understand that I could be subject to corrective action, including termination and possible legal action.
         On review, NLRB Members Hayes, Griffin and Block affirmed the ALJ’s conclusions that Navarro had been disciplined for insubordination and not for protected, concerted.  However, the board majority reversed the judge on the issue of the company’s confidentiality policy. 
To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights. See Hyundai America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) (no legitimate and substantial justification where employer routinely prohibited employees from discussing matters under investigation). In this case, the judge found that the Respondent's prohibition was justified by its concern with protecting the integrity of its investigations. Contrary to the judge, we find that the Respondent's generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the Respondent's burden “to first determine whether in any give[n] investigation witnesses need [ed] 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.” Id. The Respondent's blanket approach clearly failed to meet those requirements. Accordingly, we find that the Respondent, by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct, violated Section 8(a)(1) of the Act.
          Member Hayes, the only Republican on the board, disagreed.  In dissent he wrote,
My colleagues cite Hyundai America Shipping Agency, Inc., 357 NLRB No. 80, slip op. at 15 (2011), to support their view. But in that case, the respondent threatened employees with discipline if they discussed matters under investigation, and discharged an employee at least in part because he blind copied emails between himself and management to other employees. Id. at 14-15. Here, human resources officer JoAnn Odell did no such thing. She merely asked employee James Navarro not to discuss a matter under investigation with coworkers in order to protect the integrity of her investigation. She did not threaten him with discipline. In the judge's words, her request was merely a “suggestion.” In these circumstances, I cannot find that the Respondent promulgated any binding rule about employees discussing investigations.
          With the reelection of President Barack Obama, the Banner case will remain the law of the land for at least four more years.  Given this virtual certainty, management-side labor counsel are advising clients to give the following cautionary advice to employees involved as witnesses in internal investigations:
“I appreciate your coming in.  Reputations are at stake in this investigation.  Sensitive issues are involved.  In short, this is a very private matter.  Consequently, we will very much appreciate your treating this matter as an extremely confidential matter for everyone’s sake.”

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