Employees in the private sector have a legally protected right to engage in concerted activity for their mutual aid and protection. The NLRB has interpreted this to mean that employees have the right to discuss among themselves ongoing confidential investigations initiated by the employer in response to workplace complaints. An employer that requires or even requests confidentiality during its investigation risks committing an unfair labor practice. It’s a common practice to request confidentiality, but it’s also a real dilemma for employers.
Confidentiality Requests Must Be Specifically Justified
In a recent case, the NLRB, disagreed with the administrative law judge and found over a strong dissent, that an employer unlawfully interfered with employee rights under the National Labor Relations Act. It is common practice for many employers to request that the employee maintain confidentiality investigation. In this case the employer requested employees who were involved in workplace investigations (many involving sexual harassment) not to discuss the matter with their coworkers while the investigation was under way. To assure uniformity in the investigation the employer’s HR investigator followed a script contained in an “Interview of Complainant – Confidential Investigation.” The script directed the investigator to instruct all interviewees that:
- This is a confidential interview;
- The matter under investigation is serious, and the company has a commitment/obligation to investigate this claim;
- I [the investigator] will keep the conversation confidential;
- You [the employee] not discuss this with your coworkers while this investigation is going on, for this reason, when people are talking it is difficult to do a fair investigation and separate facts from rumors; and
- Any attempt to influence the outcome of the investigation … can be the basis for corrective action up to and including termination.
According to the NLRB’s two-member majority, this script and the request to the employees to not discuss the investigation with coworkers interfered with employee rights. The majority found fault with the employer in this case for failing in its burden to specifically justify the need for confidentiality. The NLRB, relying on its previous decisions, held that it is the employer’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.
Even if justified, the NLRB continued, the justification must outweigh the employees’ right to discuss the subject matter under investigation. Only if the employer determines that such a corruption of its investigation would likely occur without confidentiality is the employer then free to prohibit its employees from discussing these matters among themselves.
When Can an Employer Ensure Confidentiality?
Here is what the NLRB suggests. First, the employer must proceed on a case-by-case basis. The employer cannot reflexively impose confidentiality requirements in all cases or in all cases of a particular type. Second, a determination that confidentiality is necessary in a particular case must be based on objectively reasonable grounds for believing that the integrity of the investigation will be compromised without confidentiality. In other words, the employer must show in each case that “corruption of its investigation would likely occur without confidentiality.”
It’s Still a Dilemma for Employers
The NLRB has focused on confidentiality for several years and has charted an uneven course in striking a balance between an employer’s interest in protecting the integrity of its investigation and an employee’s right to talk about it. See our previous posts discussing confidential workplace investigations: Confidential Investigations Challenged by the NLRB and Confidential Investigations – What Can Your Policy Say?. There doesn’t appear to be any bright line. Unfortunately, in this current case, the NLRB offers no real guidance on exactly when the employer’s “justification” for requesting confidentiality will be sufficient to outweigh protected employee rights. Employee rights often will outweigh the employer’s seemingly legitimate concerns and interests – at least in the view of this NLRB majority.
The bottom line for private employers – don’t rely on a blanket request or demand for confidentiality in workplace investigations. Instead, employers should clearly articulate why confidentiality is necessary in this investigation by focusing on protecting the witness and preventing evidence destruction, fabrication or cover up.
If you have any questions, please contact Steve Lyman at firstname.lastname@example.org or your regular Hall Render attorney.