PERB Finds Broad Directive Not to Discuss Workplace Investigation Violates Employee Rights

January 2015

The Public Employment Relations Board (“PERB”) has determined that a directive prohibiting an employee from contacting faculty, staff or students during a fitness-for-duty examination constituted an unlawful interference with protected rights.  (Los Angeles Community College Dist. (12/24/14) PERB Dec. No 2404.)  According to PERB, the scope of the directive was “overbroad and vague” because it did not define, in a clear manner, the specific conduct it sought to prohibit. 

The decision stemmed from a letter issued by the Los Angeles Community College District (“District”) to an employee advising him that he would be placed on administrative leave while the District initiated a fitness-for-duty examination.  The letter stated, in pertinent part:  “You are hereby directed not to contact any members of the faculty, staff or students.”

In its ruling, PERB relied in part on the 2012 National Labor Relations Board (“NLRB”) decision in Banner Health System, which held that an employer’s “blanket approach” in prohibiting employee discussions of ongoing investigations violated employees’ rights to engage in concerted activity regarding their working conditions.  According to NLRB, such a prohibition does not need to contain a direct or specific threat of discipline in order to be found unlawful.

PERB rejected a variety of arguments made by the District that its directive did not interfere with the employee’s protected rights.  For example, the District asserted that the employee was not prohibited from contacting his union.  However, PERB noted that the letter was stamped “confidential,” which “reasonably would be construed to prohibit any discussion of the matter.” [Emphasis in original.]

Additionally, PERB found that the letter could interfere with the employee’s protected rights despite the District’s contention that it was issued in a non-disciplinary context.  “The law does not differentiate between disciplinary and non-disciplinary matters in requiring that employer rules not intrude on protected employee rights,” PERB stated.

Finally, PERB rejected the District’s assertion that no violation existed because nothing in the directive precluded the employee from engaging in “specific” protected activities.  PERB noted that a violation may exist if employees would reasonably construe the language to prohibit protected activity.  It stated that “employees . . . should not have to decide at their peril what conduct is not lawfully subject to the broad prohibition contained in the directive.”

PERB acknowledged that employers may have the right to demand employee confidentiality during an investigation under certain circumstances not present in this case, such as to preserve the integrity of the investigation.  But it stated that “the burden . . . is squarely on the employer to demonstrate that a legitimate justification exists for a rule that adversely impacts employees’ protected rights.”

This decision illustrates PERB’s position that it “does not look favorably on broad, vague [employer] directives that might chill lawful speech or other protected conduct.”  Employers must be prepared to show that any restriction on speech is warranted by a legitimate business justification that outweighs employees’ rights.   

If you have any questions regarding this matter, please call one of our six offices.

F3 NewsFlash prepared by Dean T. Adams and John W. Norlin.
Dean is a Partner in the F3 San Diego office.
John is Special Counsel in the F3 San Diego office.