Callifornia PERB decision expands employee rights. PERB Affirms Employees’ Right to Contact Faculty, Staff or Students About Investigations, and Holds That An Employer’s Blanket Confidentiality Directive Violates the EERA, December 29, 2014 By Robert J. Bezemek.
Callifornia PERB decision expands employee rights. PERB Affirms Employees’ Right to Contact Faculty, Staff or Students About Investigations, and Holds That An Employer’s Blanket Confidentiality Directive Violates the EERA, December 29, 2014 By Robert J. Bezemek.
Callifornia PERB decision expands employee rights. PERB Affirms Employees’ Right to Contact Faculty, Staff or Students About Investigations, and Holds That An Employer’s Blanket Confidentiality Directive Violates the EERA, December 29, 2014 By Robert J. Bezemek.
Callifornia PERB decision expands employee rights to talk to each
other under mutual aid and protection rights.
PERB Affirms Employees Right to Contact Faculty, Staff or Students About Investigations, and Holds That An Employers Blanket Confidentiality Directive Violates the EERA, December 29, 2014 By Robert J. Bezemek. For years, public employers have insisted that employees under investigation, or placed on administrative leave, take no action to communicate with other employees, students, or members of the public, about their investigations. Similar confidentiality directives have been issued to employees whose districts have ordered them barred from campus. For as long, we have argued that such blanket restrictions on employees violates their rights under the EERA to communicate with others for their mutual aid and protection. Now PERB has issued a precedential decision sustaining the position we have argued. The decision was issued on December 24, 2014, in the case of Los Angeles Community College District, PERB Decision No. 2402 (2014). An individual adjunct instructor, Mr. Perez, was involved in a work dispute, that spilled over into the classroom. This dispute resulted in the District placing Perez on paid administrative leave and ordering him to attend a fitness-for-duty examination. The directive included this order: You are hereby directed not to contact any members of the faculty, staff or students. If you have any questions during the time that you are on leave, please contact [the Vice President of Academic Affairs]. (ALJ decision, p. 6) The PERB General Counsel issued a complaint alleging that this directive interfered with Perezs protected rights in violation of section 3543.5(a) of the EERA. After a PERB trial, the ALJ issued a proposed decision holding that the directive violated the Act, as alleged. The District appealed. PERB rejected the appeal, and held that the ALJs conclusions were in accordance with applicable law, supplementing it with a decision rejecting various employer defenses. In its ruling, PERB concluded: It is fundamental that employees have the right to discuss their working conditions amongst themselves. The District's directive infringes on employees' protected rights by prohibiting Perez from contacting faculty, staff or students in connection with the actions taken by the District against Perez and its ongoing investigation. The scope of the directive is overbroad and vague in that the directive fails to define the specific conduct it sought to prohibit in a clear manner. And, at no time did the District clarify that protected communications were excluded from its scope. By failing to
delineate which communications are lawful or unlawful, the directive would
reasonably be construed to mean that all communications, including those made while engaging in protected activity, are prohibited. In circumstances not present here, the employer may have the right to demand confidentiality of its investigation. (See Caesar's Palace (2001) 336 NLRB 271 [confidentiality rule prohibiting employees from discussing ongoing drug investigation constituted legitimate business justification for intruding on employees' exercise of protected rights]; but see Phoenix Transit Systems (2002) 337 NLRB 510 [confidentiality rule prohibiting employees from discussing sexual harassment complaints after investigation concluded did not constitute legitimate business justification].) The burden, however, is squarely on the employer to demonstrate that a legitimate justification exists for a rule that adversely impacts employees' protected rights. Here, it is undisputed that employees placed on administrative leave routinely are directed not to talk to others about the substance of the investigation without any determination by the District whether such confidentiality is necessary. The District offers no explanation as to why the directive was necessary to preserve the integrity of the District's investigation. Under these facts, the District has not established its affirmative defense based on operational necessity. (Emphasis added) The message of the Los Angeles decision is that a blanket employer rule forbidding employee communications with colleagues, students and others about their work experiences, including employer investigations, violates the EERA. NLRB cases places a heavy burden on employers to justify broad, general directives that silence employees from discussing employer- ordered investigations, or adverse actions towards employees. PERB agrees in this new decision. Our firm also has a case pending with PERB that addresses the scope of such directives, and employer justifications. We have argued that a blanket prohibition on employee communications during the course of an employers investigation inhibits the discovery of exculpatory evidence, and interferes in a unions right to prepare for an investigatory interview and assist employees. We recommend that unions object to any such blanket policies, and carefully examine any employer attempts to justify confidentiality directives. A copy of the decision is available at PERBs Recent Decisions page: http://www.perb.ca.gov/decisionbank/recentdecisionsredir.aspx