Employers investigating complaints or incidents of employee misconduct—such as sexual harassment in the workplace—have typically admonished employees to refrain from disclosing information about ongoing investigations. Employers do so to protect the integrity of the investigation, the reputation of the accused employees, and the employees who lodge complaints or provide information from becoming targets for retaliation.
Needless to say, the Board’s decision in Banner Health System, 358 NLRB No. 93 (2012), caused concern among employers who had used that process. In that case, the employer’s practice was to instruct employees to refrain from talking with their co-workers about subjects related to an ongoing investigation of possible employee misconduct. The employer had given such instructions to the employees and supervisors who were interviewed about an incident of insubordination by a co-worker.
The Board rejected the employer’s argument that the employer’s policy did not violate Sections 7 and 8(a)(1) of the National Labor Relations Act because it served the legitimate business interest of maintaining the integrity of such investigations. The Board held that an employer’s “generalized” concern about the integrity of investigations did not outweigh the employees’ Section 7 right to discuss a subject related to the terms and conditions of their employment. Thus, an employer must first determine whether—in specific investigations—witnesses needed protection, evidence was in danger of being destroyed, testimony could be fabricated, or a cover-up had to be prevented. The Board also concluded that an employer could violate Section 8(a)(1) even if it had not made a direct or specific threat to discipline employees who ignored instructions to refrain from talking about an ongoing investigation.
That decision generated criticism by employers who felt that such instructions should be given as a matter of course and who were left confused by what they could do to protect investigations from being compromised. Indeed, the Board was accused by some of being out of touch with the realities in the workplace and having increased the potential for claims of retaliation against employees who had launched or cooperated with investigations.
NLRB’s Division of Advice Attempts to Clarify the Holding in Banner Health Systems
On January 29, 2013, the NLRB’s Division of Advice issued an Advice Memorandum in an apparent effort to address those concerns and clarify what Section 8(a)(1) permitted and prohibited. The employer’s Code of Conduct under review stated as follows:
The Company has a compelling interest in protecting the integrity of its investigations. In every investigation, the company 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 cover-up. To assist the Company in achieving those objectives, [employees] must maintain the investigation and our role in it in strict confidence. If employees do not maintain confidentiality, they may be subject to disciplinary action up to and including immediate termination.
Presumably, that blanket policy was drafted with the Banner Health System in mind because it specifically mentions the justifications for a confidentiality rule which were articulated in that decision, namely, the need to protect witnesses, evidence from being destroyed, testimony from being fabricated, and against a cover up. Regardless, the Division of Advice found that the employer’s rule violated Section 8(a)(1) because the employer had not demonstrated the type of particularized need for confidentiality in a given situation as required by the Board. In that regard, the Advice Memorandum states:
The Employer may not avoid that burden by asserting its need to protect the integrity of every investigation, but rather must establish the need in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification for interference with the employees’ Section 7 right.
In reaching that conclusion, the Division of Advice compared cases where other employers had failed to meet that burden and a case where the employer had done so in connection with an investigation of employees’ illegal drug use and a management cover-up, which had been accompanied by threats of violence and retaliation.
The Board’s Rule and the Realities in the Workplace
Employers may remain critical of the Board’s approach to evaluating the legality of confidentiality rules because the law does not adequately address the realities that they encounter when conducting internal investigations. For example, when interviewed, employees frequently ask whether the information provided by them will be kept confidential and they may be reluctant to cooperate with an investigation unless they are assured that it will be. Under current Board law, at that juncture, the employer may be unable to provide that assurance without violating Section 8(a)(1) because the employee must be told that other interviewees will be free to discuss the investigation before it is concluded.
Indeed, an employer may not be able to determine that employees need protection until after the investigation has been partially completed and employees have been interviewed and have discussed their role in an investigation with other workers. The same situation may arise when the targets of the investigation undertake a cover-up after learning that their employer has initiated an inquiry. In both instances, it will be too late to instruct employees to refrain from compromising the confidentiality of an investigation through such premature disclosures.
As yet, the Board’s rule has not been challenged in a Circuit Court of Appeals, and judges may prove unreceptive to it. Indeed, judges may be skeptical of yet another foray by the Board into areas unrelated to the agency’s traditional area of expertise—the regulation of the relationship between employers and organized labor.
Employers Should Modify Their Policies And Procedures
Until courts have reviewed the Board’s rule, employers must refrain from implementing blanket rules and should be prepared to demonstrate that, in particular situations, a confidentiality requirement was required based on the criteria set forth in Banner Health System and reiterated by the Division of Advice.
For that reason, employers should take the following steps to ensure compliance with the law:
- Develop guidelines for conducting investigations that include an ongoing assessment of the risks posed by a loss of confidentiality in particular situations.
- Designate managers who will be involved in all investigations and train them as to how to make such assessments in accordance with Board law.
- Revise internal investigation policies to state that the employer may determine in certain situations that an investigation must remain confidential where there is a need to protect employees from intimidation or retaliation, prevent information from being destroyed, preclude a suspected cover up, and/or ensure that testimony is not fabricated. If those considerations are absent, however, employees may be free to discuss the investigation and information which has been provided to the employer.
- Document the considerations which prompted the employer to insist that the integrity of an investigation be preserved by enforcing confidentiality.
- Give employees who are interviewed clear instructions, preferably in writing, when the employer reasonably determines that the confidentiality of an investigation must be maintained.
- Monitor the situation and take appropriate corrective measures, including disciplinary action, where there is a breach in confidentiality.
For more information please contact Mike Smith at 410-583-2400 or firstname.lastname@example.org.