PERB has held that a standard, boilerplate directive prohibiting employees from contacting others during an employer’s ongoing investigation unlawfully interferes with the employees’ protected rights under EERA to communicate about working conditions.

Perez v. Los Angeles Community College District (2014) PERB Decision No. 2404.

Background

Carlos Perez (Perez) worked as an adjunct electronics instructor at the Los Angeles Community College District (District). When the District assigned Perez to fewer teaching assignments, Perez became upset and engaged in alarming conduct including, emailing District administrators accusing them of harming him, as well as discussing his personnel issues with his students in the classroom.

District administrators grew concerned with Perez’s conduct and fitness for duty. The District placed Perez on paid administrative leave pending the completion of a fitness for duty examination. The District issued a letter to Perez regarding same. The final paragraph of the letter stated:

“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 Dr. Dan Walden.”

PERB’s Decision

The PERB Complaint alleged that the District interfered with Perez’ protected EERA rights by directing Perez not to contact faculty, staff or students during the time he was on leave.

Under EERA, public school employees have the right to communicate with coworkers and union representatives about wages, hours, and other terms and conditions of employment. In analyzing whether the District’s directive to Perez constituted unlawful interference, PERB found that the District’s broad directive to Perez resulted in at least slight harm to his protected employee rights. PERB noted that it does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct, and that blanket rules prohibiting discussion of employment conditions have been found to violate protected rights. The fact that the directive did not threaten any discipline or other consequence for failure to comply did not absolve the District from unlawfully interfering with Perez’ protected rights, especially since insubordination is a commonly understood ground for discipline.

PERB then addressed whether the District had a legitimate business interest for issuing its directive to Perez that outweighed the harm to his protected rights. The District acknowledged that its directive to Perez was standard, boilerplate language that it used whenever employees are placed on administrative leave to prevent employees from tainting evidence gathered while an employee is on leave. The District, however, did not present any evidence to explain how the integrity of its investigation could be jeopardized by Perez’ participation in protected activities.

PERB adopted the National Labor Relations Board’s (NLRB) decision in Banner Health Systems (2012) 358 NLRB No. 93 which held that the employer’s generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employees’ protected rights. Rather, in order to minimize the impact on employees’ protected rights, the employer bears the burden to “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.” PERB found that the District’s blanket approach clearly failed to meet those requirements.

PERB noted that under certain circumstances, not present here, an employer may have the right to demand confidentiality of its investigation, and noted that the context in which the directive is given is important. PERB also explained that an employer may clarify an otherwise problematic directive and cure any unlawful interference by clarifying the scope or limits of the directive.

Here, because the District’s directive was absolute and overbroad with no clarifiers, it could reasonably be construed to bar Perez from discussing his concerns about working conditions, and was therefore unlawful.

Impact

Blanket rules requiring confidentiality or otherwise prohibiting employee communications are disfavored by PERB. School districts and community college districts should avoid using any standard, boilerplate language requiring confidentiality during investigations. Rather, districts should determine on a case-by-case basis whether confidentiality is required during each investigation. Such a determination may include whether witnesses need protection, evidence may be destroyed, testimony may be fabricated, or there is a need to prevent a cover up.

If it is determined that confidentiality is required during an investigation, districts should prepare directives to employees that are narrow and clear in scope (e.g., define the specific conduct that is prohibited), and also specify that the directive does not bar communications with the employee’s union or the exercise of other protected rights by the employee.