April 06, 2018
In the most recent example of how an employer can be accused of violating one law by complying with another, HR Policy has urged the Supreme Court of Ohio to overturn a lower court's determination of defamation by an employer that could only have avoided the claim by denying the employee's federal labor rights. In the case, the Affinity Medical Center had granted an employee's so-called Weingarten right to be accompanied by a union representative at an investigative meeting involving alleged mistreatment of a hospital patient. Based on what was said in the interview, the employee then successfully sued the company under state law as defaming her in front of the union representative. Our amicus curiae brief argues that, in this instance, the National Labor Relations Act pre-empts state defamation law, noting that a contrary result would "inequitably expose employers to defamation liability in situations where they have no control over publication. . . .Employers, employees and unions should be permitted a wide latitude for discussion at an investigative interview stage without the threat of litigation, including the filing of defamation claims. . . .Investigation of alleged employee misconduct, particularly as here in a hospital setting, is necessary not only to permit a business to successfully operate but also to protect the public from negligence and improper employee conduct."