If employers have not already done so following the National Labor Relations Board’s decision in Banner Health System last summer, a recently released advice memorandum issued by the National Labor Relations Board’s (NLRB) Office of the General Counsel (OGC) should motivate employers to rethink their approach to internal workplace investigations and review policies relating to such investigations.
In order to protect the integrity of workplace investigations, employers often request confidentiality of those participating. By preventing employees from discussing the subject matter of the investigation or the process itself, employers hope to collect more accurate and reliable evidence. Without some control over the process, however, there is a risk of witness tampering, evidence destruction and contamination of necessary information. It is imperative for each and every investigation to be methodical, impartial and comprehensive, but depending on the circumstances, it may be equally important to maintain some level of privacy for employees, both those who make and those who are subject to inquiries because most often, investigations conclude in vastly different ways than how they start.