Employers: Investigating Alleged Title VII Violations Just Got More Difficult

Authored by David P. Frenzia, R. Michael Lowenbaum

Aug 27, 2014

A new ruling from the National Labor Relations Board (Board) will impact, and in many cases limit, employers’ investigations of alleged Title VII violations. In a case involving allegations of sexual harassment last month, the Board ruled that an individual employee will be covered by the National Labor Relations Act (NLRA) if he or she is seeking assistance from fellow employees in Title VII violation investigations.

The Decision

In Fresh & Easy Neighborhood Market, Inc., 360 NLRB No. 12 (2014), an employee alleged she was sexually harassed when a coworker wrote sexually suggestive statements and images referencing her on a displayed white board. The employee copied the statements on a piece of paper and asked other employees who had seen the white board to sign her paper, indicating that it was a truthful representation of what had been written. The employer investigated her complaint and disciplined the responsible party but the dissatisfied employee ultimately filed an unfair labor practice charge.

The employee challenged the legality of the employer’s rule that prohibited employees from soliciting statements from their coworkers. The charge also alleged that the employer had created an impression among employees that concerted activities were under surveillance. The charge was originally dismissed by the Administrative Law Judge, finding that soliciting signatures of employees under these facts did not rise to the level of concerted activity for mutual aid or protection because the employee was acting solely and on behalf of herself.

However, a divided Board held that collecting signatures from fellow employees to corroborate a sexual harassment claim under Title VII was protected by the NLRA because it constituted “other concerted activity for the purpose of . . . mutual aid or protection” within the meaning of Section 7 of the NLRA. The Board decided that requesting signatures from fellow employees was a sufficient engagement in “concerted activity.” The Board considered this act to be fundamentally for “mutual aid or protection” because the employee was seeking protection under Title VII from sexual harassment. Although her Title VII claim would be an individual one, merely soliciting help from fellow employees to support her claim “implicat[ed] the terms and conditions of their employment” and would be protected by Section 7.

The Takeaway

This decision is significant because it will impact employers’ ability to investigate allegations of Title VII violations. The NLRA prohibits employers from questioning employees about “protected” concerted activity. Following this case, employers will face difficulty in investigating complaints because they will be forced to narrowly focus on the alleged harassing incident itself and avoid questions about the interaction between employees concerning the incident.

Moreover, in Banner Health Systems, 358 NLRB No. 93 (2012), the Board held that employees have a Section 7 right to discuss an employer’s active investigation with their coworkers and that generally asking or requiring employees not to discuss the matter under investigation is a violation of the NLRA.Co-employees tend to be the greatest resource for information about employment-related complaints, but taken together, the decisions in Fresh & Easy Neighborhood Market and Banner Health Systems significantly impair the employer’s ability under Title VII to investigate alleged incidents of harassment.

If you have any questions about the NLRB’s protected concerted activity analysis or any other labor relations matter, please do not hesitate to contact any of our experienced labor attorneys at The Lowenbaum Partnership: R. Michael Lowenbaum, David Frenzia, Corey Franklin, D. Michael Linihan, or Robert Seigel.

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