In most employee investigations, employers understandably direct that the participants (including witnesses) refrain from discussing the investigation with other employees. Now, the employee-friendly NLRB has weighed in on this previous uncontroversial issue and placed yet another landmine that employers have to think about in managing their workforce.
In its recent decision in Banner Health Systems, the NLRB held that a non-union hospital violated Section 8(a)(1) of the NLRA by asking employees who make a complaint to refrain from discussing the ongoing investigation with coworkers. Section 8(a)(1) of the NLRA prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights, such as the right to organize or engage in concerted activity.
In Banner Health Systems, the employer’s human resources consultant routinely asked employees who made complaints to refrain from discussing the matter with coworkers while the investigation was pending. Although this is a common human resource practice, the NLRB found that an employer’s generalized concern with protecting the integrity of its investigations is an insufficient business justification to outweigh an employee's Section 7 rights under the NLRA, even where the employer did not threaten to take disciplinary action if the employee breached confidentiality.
According to the NLRB, in order to impose confidentiality restraints on an investigation, an employer must make an individualized assessment of the legitimate business justification and whether that justification outweighs that particular employee’s Section 7 rights. When undertaking this independent analysis, the NLRB says that an employer must consider whether: (1) the witnesses need protection; (2) the integrity of the investigation is threatened by destruction of evidence; (3) testimony is in danger of being fabricated; or (4) there is a need to prevent a cover-up. As such, a blanket policy of requiring employees to maintain confidentiality during ongoing investigations did not meet these requirements.
Interestingly, while some government anti-discrimination agencies have encouraged confidentiality of workplace investigations, the EEOC may be moving in the direction of the NLRB’s decision in Banner Health Systems. In a letter dated August 3, 2012, the Buffalo, NY office of the EEOC notified an employer that its policy prohibiting workers from discussing an ongoing internal investigation involving harassment is a violation of Title VII. Of course, this is just one letter from one EEOC Office, but it may be a sign that the EEOC is heading in this direction on this issue.
It remains to be seen whether the NLRB’s view will be supported by federal or state courts or endorsed by other agencies, but employers need to be aware of this decision and understand its impact on a blanket confidentiality rule applicable to all internal investigations. If you have a written policy that uniformly requires confidentiality in workplace investigations, it would be advisable to revise this language to build in some flexibility in how this rule is applied depending on the circumstances of each situation.