South Bend / Mishawaka, IN – In its investigation of workplace complaints, an employer will likely ask that the employees involved remain quiet and not discuss the matter with co-workers, for a variety of reasons. However, the National Labor Relations Board does not see it that way. In an Advice Memorandum issued by the Board’s Associate General Counsel on January 29, 2013, mirroring the findings of Banner Health System, 358 NLRB No. 93, July 30, 2012, it was reiterated that an employer may not instruct employees to keep all workplace investigations confidential. According to the Board, an employer may only issue a confidentiality instruction if it can show that the directive was justified (business necessity).
In the Banner Health decision, the Board held that requiring mandatory confidentiality in disciplinary investigations violated employees’ Section 7 rights to discuss matters concerning terms and conditions of employment, including matters that may be the subject of an ongoing investigation, i.e. sexual harassment or a safety violation. A policy statement (employer’s) that directs employees not to discuss such matters with coworkers is unlawful because it coerces the complaining employees into silence, resulting in an unlawful restraint of their Section 7 rights, with or without a threat of imposing discipline for violating the confidentiality rule.
Based on this ruling, an employer may only instruct employees to keep an ongoing investigation confidential if it can demonstrate a legitimate business justification for doing so outweighs employee rights under Section 7, to discuss the investigation with one another. To hold up under Banner Health, an employer’s (lawful) request for confidentiality will require specific evidence that was necessary to ensure witnesses’ safety, preserve evidence, prevent falsified testimony, or prevent a cover-up. According to the Board, the primary basis of the confidentiality requirement is the preservation of the investigator’s integrity, and an evaluation, on a case by base case basis, of the mandate to avoid a violation of an employee’s Section 7 rights.
The Board’s Division of Advice Memorandum stated that “the employer cannot maintain a blanket rule (overbroad policy) regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a cases by case basis,” based on the factors identified in Banner Health, i.e., whether witnesses need to be protected, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.
Review your policies and practices (with counsel) as they relate to workplace investigations to ensure that employee confidentiality is preserved and assured, on a case by case basis;
Exercise caution when issuing blanket directives to nonsupervisory employees about discussing workplace issues and disciplinary investigation information among themselves;
Strive to maintain the confidentiality of investigations by narrowing the scope of the investigation to the alleged wrongdoing;
Consult with experienced employment counsel before terminating or otherwise disciplining an employee for violating the company’s “confidentiality” policy.
The law is changing and so is the NLRB. The agency’s recent decisions indicate a strong mandate that employers carefully balance the requirement for confidentiality of investigations with the preservation and non-interference with employee Section 7 rights. The failure to do so could result in the filing of an unfair labor practice charge and a finding of a violation of the National Labor Relations Act.
What Every Employment Lawyer Needs to Know About the National Labor Relations Act, John R. Runyan and Garic Kato, Michigan Bar Journal, Sept. 2013
NLRB: Employees May Not Require Confidentiality in all Internal Investigations, Hillary J. Massey, The Job Description, Volume 26 Issue 1, ABA; February 2014.
The NLRB as the “Nonunion” Labor Relations Board, Stan Hill, The Journal of the ABA Section of Labor & Employment Law, Volume 29, Number 1, Fall 2013.
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