Conducting a workplace investigation usually involves confidentially interviewing witnesses and other parties involved in the situation at hand. But what if asking employees to keep the information confidential was actually violating those same employees’ rights? This is what the National Labor Relations Board (NLRB) has implied in recent cases. What should HR do?
NLRB positions on confidentiality in workplace investigations
“Several years ago, the NLRB actually supported the confidentiality of workplace investigations in the IBM case. They actually said employer investigations into these matters require discretion and confidentiality.” Louis Klein told us in a recent CER webinar. However, this is changing.
The IBM case had several responses from the NLRB:
“Employer investigations into these matters require discretion and confidentiality. The guarantee of confidentiality helps an employer resolve challenging issues of credibility involving these sensitive, often personal, subjects . . . If information obtained during an interview is later divulged, even inadvertently, the employee involved could suffer serious embarrassment and damage to his reputation and/or personal relationships and the employer’s investigation could be compromised by inability to get the truth about workplace incidents.
The possibility that information will not be kept confidential greatly reduces the chance that the employer will get the whole truth about a workplace event. It also increases the likelihood that employees with information about sensitive subjects will not come forward.”
There is another case called Caesar’s Palace, which was actually decided before the IBM case, but still maintained the confidentiality of the investigation:
“. . . Respondent imposed a confidentiality rule during an investigation of alleged illegal drug activity in the workplace. Because [the] investigation involved allegations of a management cover-up and possible management retaliation, as well as threats of violence, the Respondent’s investigating officials sought to impose a confidentiality rule to ensure that witnesses were not put in danger, that evidence was not destroyed, and that testimony was not fabricated. We find that the Respondent has established a substantial and legitimate business justification for its rule and that, in the circumstances of this case, this justification outweighs the rule’s infringement on employees’ rights.”
Now the NLRB is going in a different direction. “With the Hyundai America Shipping Agency case in 2011, they now have stated that routine instructions of confidentiality in workplace investigations are unlawful.” Klein noted.
“It is undisputed that the Respondent’s managers and human resource supervisors routinely instruct employees involved in investigations not to talk with other employees about the substance of those investigations. Such admonitions are apparently given in every case, without any individual review to determine whether such confidentiality is truly necessary. Under the Board’s balancing test, it is the Respondent’s responsibility to first determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up.”
The case that really hit home was the Banner Health System case. During the company’s investigation into a failure to properly sterilize medical equipment, HR asked employees not to discuss the matter with their coworkers while the investigation was ongoing. There was no threat of discipline if the rule was violated. The administrative law judge found that this suggestion of confidentiality was for the purpose of protecting the integrity of the investigation, which it found to be a substantial justification for the confidentiality. However, the NLRB panel reversed that decision on this issue and applied Hyundai America’s four step analysis to the case.
The NLRB said: “To justify a prohibition on employee discussion of on-going investigations, an employer must show that is has a legitimate business justification that outweighs employees’ Section 7 rights.” Basically, this meant that a general concern for the integrity of an investigation is insufficient to outweigh employees’ NLRA Section 7 rights.
Section 7 states: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
NLRB and confidentiality in workplace investigations: The 4-step analysis
To stay in compliance with the NLRA and not infringe on employees’ Section 7 rights in any given situation where an employer wants to impose confidentiality, it is the employer’s burden to first determine whether any one of these is true:
- Witnesses need protection
- Evidence is in danger of being destroyed
- Testimony is in danger of being fabricated
- There is a need to prevent a cover up
This is the 4-step analysis.
Prior to commencing the investigation, review these four areas and make determinations and document them. If confidentiality is found to be required during an investigation, tell witnesses why the confidentiality is necessary and explain that the confidentiality lasts until the investigation is complete. Also remember to document witness discussions regarding confidentiality.
It is also advisable to:
- Review any employer policies that can be construed as requiring a mandatory or blanket admonition of confidentiality in all investigations.
- Train in-house investigators on proper standards.
- Document each determination of confidentiality and be prepared to defend such decisions.
The above information is excerpted from the webinar “NLRB Expands Its Reach: Why Even Non-Union Employers Need To Watch Out.” To register for a future webinar, visit CER webinars.
Louis C. Klein is of counsel in the Los Angeles office of Foley & Mansfield. He focuses his practice in employment matters.