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.
Last summer, the NLRB issued a decision, Banner Health System, which held that because the National Labor Relations Act provides employees with the right to engage in protected concerted activity, i.e. discussing terms and conditions of employment, including talking about discipline with co-workers, employers may not enforce blanket policies requiring employees to maintain confidentiality around internal workplace investigations. In that case, a hospital employee contacted human resources because of a concern he had about a supervisor’s instruction believed to be outside of the established hospital procedure. The NLRB concluded that Banner directed the employee to keep the complaint confidential and not to discuss the investigation based on its usual practice, although the NLRB’s conclusions were not supported by the evidence from the hearing. As a result of the decision in Banner, employers must now demonstrate a legitimate business justification for requiring confidentiality on a case-by-case basis.
The four justifications articulated by the NLRB are: 1) protection from witness harassment or intimidation; 2) danger of evidence being destroyed 3) danger of testimony being fabricated; or 4) prevention of a cover up.
While blanket confidentiality policies related to internal investigations are no longer permissible, the Advice Memorandum from the OGC, dated Jan. 29 but not released until April 16, provides some guidance as to how employers can make confidentiality policies related to internal investigations lawful.
According to the OGC, employers have the "burden to show in each particular situation" why confidentiality is necessary. In addition, it provided suggested policy language relating to workplace investigations, which could be used instead of mechanical, universal confidentiality requirements. Notwithstanding the direction from the OGC, the NLRB may ultimately adopt or reject the language the OGC set forth as acceptable, but if an employer follows these guidelines, the risk of having its workplace investigation policy (and practices) deemed unlawful diminish.
Going forward, for each investigation, employers with and without unionized workforces should assess certain factors before determining whether confidentiality is necessary and if so, the scope and time requirements of such restrictions. In conjunction with the specific justifications outlined by the NLRB, employers should consider the potential for cover-up, collusion or fabrication of information/testimony; theft or misappropriation of trade secrets, company proprietary data, formulas, insider trading or misuse of other sensitive data; copycat testimony or evidence; retaliation against the accused, accuser or witness; damage to the reputation of any employee, witness, accused, the company or accuser; destruction of evidence and criminal charges. Where one or more of these justifications and/or factors are or might be present, appropriate parameters regarding confidentiality should be developed and documented.
Employers should revise policies and practices requiring confidentiality in internal investigations to show that the confidentiality requirement will be applied on an individual case basis. In addition, employers might consider developing a “check-list” or form to document whether confidentiality is required for a particular investigation, the justification for the requirement, the scope and length of any confidentiality requirement and the explanation provided to the employee as to why confidentiality is needed. By taking a practical approach to handling investigatory confidentiality in light of Banner Health and the OGC’s Advice Memorandum, employers will greatly reduce the risk of charges and complaints issued on such policies and practices.