The Confidential Nature of Workplace Investigations: A Violation of the NLRA?
April 30, 2013
Most policies on workplace investigations include language to the effect of, “To maintain the integrity of the investigation, employees are required to maintain in strict confidence all information related to the investigation. Violations of this policy may subject the employee to discipline, up to and including termination.” Not much thought was given to these policies until recently when the National Labor Relations Board (NLRB) again stretched its authority in non-union settings by maintaining that such blanket prohibitions violate Section 7 of the National Labor Relations Act (NLRA).
In Banner Health Systems, a hospital technician refused to follow his supervisor’s orders on an alternate method of cleaning surgical instruments. During the investigation of the technician’s failure to follow this order, the hospital provided the technician with a preprinted form which contained a request that employees not discuss the investigation with others. The employee was disciplined for his insubordination. He then filed an unfair labor practice charge with the NLRB claiming that such a request for confidentiality violated his Section 7 right to engage in protected concerted activity.
The NLRB found that a blanket prohibition like this was overly broad and a violation of the employee’s rights. It held that employers can only request that employees not discuss a matter under ongoing investigation if there were “legitimate” and “substantial” justifications for maintaining the confidentiality of the investigation. It further found that such a request can only be made on a case-by-case basis after first determining that witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.
Since that decision, the NLRB has clarified it stance on the use of confidentiality policies during an investigation. The NLRB’s Division of Advice (Advice) provides employers with guidance on policies and procedures and whether they may violate the NLRA. Recently Advice reviewed the following policy found in Verso Paper’s Code of Conduct:
“Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”
Advice opined that this policy violated Section 7. However, it also indicated that Verso’s policy would be lawful if it deleted the last two sentences and replaced them with “Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.” Such a revision makes it clear that the employer’s policy of confidentiality does not apply in every situation, and it establishes that the employer’s interest in confidentiality must be balanced against the employee’s Section 7 rights.
This guidance from the NLRB provides employers with helpful information on drafting and enforcing policies pertaining to workplace investigations. It would be wise to review your current policy to see if it is compliant with the NLRB’s stance on such matters.