Four years ago, in Epilepsy Foundation of Northeast Ohio, the National Labor Relations Board (the "Board") ruled that employers must permit non-unionized workers to have a co-worker present during an investigatory interview that could result in discipline. Although this right had existed in unionized settings since 1975, it did not exist in non-unionized workplaces. The Epilepsy Foundation decision drew substantial criticism from many non-unionized employers who believed it would unnecessarily hamper their internal investigations.

Sympathizing with employers’ complaints, the Board recently overruled itself. In IBM Corp., the Board held that employers are no longer required to permit non-unionized workers to have a co-worker present during investigatory interviews. The Board reasoned that the presence of a co-worker during such interviews may compromise confidentiality and impede the effectiveness of employer investigations. The Board viewed this as an undesirable result, particularly given the increasing number of good reasons for employers to conduct prompt and effective investigations into workplace misconduct.

Although the complaining employees in IBM Corp. attempted to analogize assistance from a nonunion co-worker to assistance from a union representative, the Board rejected this suggested parallel. As the Board found, non-union co-workers do not represent the workforce, they do not typically deal with the employer about workplace issues, and they are less likely to be able to facilitate the investigation. Thus, the Board found, the balance of interests weighs in favor of permitting employers to refuse to allow nonunionized co-workers to be present during investigatory interviews.

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