Avoid NLRB Trouble: Follow Interview Guidelines

Under federal employment law interview guidelines, Texas employers must follow specific rules when questioning workers about misconduct—especially when unions are involved. The NLRB’s long-standing Johnnie’s Poultry decision outlines how to conduct lawful interviews. This article breaks down what every employer needs to know to avoid legal risks during internal investigations.

Don’t count your chickens before giving warning: an NLRB lesson
Author: Jacob M. Monty

In 1964, the National Labor Relations Board (NLRB) decided the case Johnnie’s Poultry Co., which became a monumental judgment that required employers to take specific steps when interviewing employees about misconduct. Last month, the Board reaffirmed the decision and highlighted the importance of a Johnnie’s Poultry warning.

Do’s and don’ts
A Johnnie’s Poultry warning is the best way for employers to protect themselves from any possible violation of employee union rights. We can see how popular unions have become in the news with the recent union wins at Starbucks and Amazon. Texas employers must be aware of the do’s and don’ts when it comes to unions and concerted activity.

Essentially, Johnnie’s Poultry is a free, simple form given to the employee to sign before an investigation. First, the form should be in a language the employee speaks. It should outline what the meeting will be about (specifically that it isn’t about the union) and that there will be no discussion about the union or how the business feels about the union.

Before you begin questioning the employee, make sure you:
• Communicate the purpose of the questioning;
• Let the employee know there will be no disciplinary action for answering questions;
• Confirm they are answering questions voluntarily;
• Ask questions free from any hostility about union organizing;
• Make certain your questions aren’t coercive;
• Assure that your questions don’t exceed what is absolutely necessary regarding the misconduct; and
• Do not elicit information concerning employees’ subjective state of mind or interfere with any statutory rights of employees.

Bottom line
Ultimately, from an HR perspective, Johnnie’s Poultry is a way to be proactive when investigating a theft or any misconduct in the workplace. A Johnnie’s Poultry warning is essential for any business, but especially when there’s an active union. It removes the temptation to enact adverse actions on employees intentionally or unintentionally and covers employers from false violation accusations. When employers forego using a Johnnie’s Poultry warning, they leave the opportunity open for any potential coerciveness. Take note that violating an employee’s union rights can result in a charge with the NLRB.

Contact an employment attorney today to help you draft a warning before your next investigation.

Jacob M. Monty is the managing partner at Monty & Ramirez LLP in Houston and can be reached at 281-559-6448 or jm****@*************aw.com.

This article was originally written by Jacob M. Monty for the Texas Employment Law Letter.