NLRB's Confidentiality Shift May Hinder Workplace Probes

Law360, New York (January 4, 2013, 6:25 PM EST) -- The National Labor Relations Board recently struck down a 34-year-old rule that shielded companies from having to give unions witness statements underpinning decisions to discipline workers, opting instead for a test lawyers say creates uncertainty for employers and will likely chill employee cooperation with worker misconduct probes.

In its 3-1 decision in a dispute between a union and continuing-care facility Piedmont Gardens over a worker who was fired for allegedly sleeping on duty, the NLRB on Dec. 15 dispensed with the "categorical exemption" that had protected the confidentiality of witness statements taken in internal disciplinary investigations. It replaced the exemption with...

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