When an Employer Interviews an Employee, The Power of the NLRA Compels You!

By Donald Waldron and Elizabeth Torphy-Donzella - Shawe Rosental LLP

June 28, 2023

When an employer receives a complaint of workplace misconduct, they often must conduct an investigation that may include interviewing employees.  Interviewing an employee is not as simple as one may assume. Employees may have legal rights and protections that restrict an employer’s ability to interview them. Navigating those rights and protections is essential in insulating employers from possible civil and criminal liabilities.

While there is no one-size-fits-all approach, one way to find yourself in a legal dispute asking for forgiveness is to take the approach of a Taqueria in Northern California.  While under investigation by the Wage and Hour Department of California, a Taqueria owner brought a priest into the restaurant to compel his employees to confess their “sins.” Yes, not kidding.

When the employees spoke to the priest, they were asked several employment related questions such as whether they had stolen anything from work, been late to work, or had taken adverse actions against the restaurant. Thou shall not do this, ever.

Employers must ensure that their questioning of an employee does not violate federal employment laws, local laws, or the National Labor Relations Act (NLRA).  The National Labor Relations Board (NLRB) investigates claims of employers violating employees’ NLRA rights. While NLRB understands employers have compelling interests to investigate claims of employee misconduct, employers would be wise to consider several factors before conducting the interview.

Purpose of the interview.  An employer may be forced to deal with several types of misconduct that may obligate an employer to adequately investigate the misconduct. These include allegations of:

•  Discrimination
•  Harassment
•  Theft or Fraud
•  Health and Safety
•  Criminal Activity
•  Threats of Violence
•  Workplace Drug or Alcohol Use

If an employer is notified of or discovers instances of misconduct, they must act in accordance with the correlating laws governing the misconduct.

Setting of the interview. An employer must use tact and refrain from being overzealous in their efforts to interview the employee. An employer should never:

•  Confine an employee.
•  Interview an employee against their will.
•  Hold or interview the employee for extended periods of time.
•  Prevent an employee from leaving the interview.
•  Restrain the employee during the interview.
•  Create an impromptu confessional by including a priest.

Additionally, before conducting an interview with an employee, an employer should consider:

•  Whether there is a history between the interviewer and the employee (to avoid the appearance of bias).
•  Whether the interviewer is a superior (to avoid the appearance of intimidation).
•  Where the interview takes place (should be in a familiar place, not off-site).
•  Whether the investigation is aligned with company policies and procedures.
•  Whether the interviewer is a priest (don’t use a priest).

Conducting an interview utilizing these tactics may expose an employer to civil or criminal liabilities.

Scope of the questions asked.  An employer must tailor their questions during an interview only to those reasonably related to a facially valid investigation.  Employers should not broaden the scope of their questioning to issues not related to the investigation at hand. Like whether the conduct would be a sin!

Even if the questions are related to a legitimate investigation, employers need to be wary about questioning an employee about protected activities. The NLRB will look at the totality of the circumstances to determine whether:

•  The investigation for which the interview is conducted is facially valid.
•  The questioning pertains to union activities, views about unions; or observations and conversations of third parties regarding union activities.
•  The questions are tailored towards the goal of the investigation.
•  The employer truthfully informed the employee about the reason and scope of the interview.
•  A pop-up confessional was provided (okay, just kidding here).

Before an interview may occur, certain employees under certain conditions are entitled to warnings, protections, and representation. For example, a union-represented employee that reasonably believes the interview may lead to disciplinary action is entitled to Weingarten rights, local government employees are entitled to a Garrity Warning, and even nonunionized employees are entitled to protections that can become complex under certain conditions.

Interviewing an employee about misconduct may seem straight forward, but there are numerous instances where employees’ rights and protections come into conflict with an employer’s duty and/or desire to interview an employee. Employers should always seek guidance and/or legal counsel before conducting an investigative interview of an employee.

And, finally, don’t include a priest, rabbi, imam, reverend or any clergy member if you are not a church.

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