The Board recently overturned 38 years of NLRB precedent regarding an employer’s obligation to produce employee witness statements to unions. The old standard implemented a bright line rule where witness statements were a unique form of information that could be kept confidential, even if the company was required to provide the witness’s name or title to the union. The union would then use this information to conduct its own investigation and get its own statements. Although this procedure has been effective for the past 38 years, the Board suddenly changed course.

A continuing care facility withheld from the Service Employees International Union statements from three employees who had witnessed the terminated employee sleeping during his shift. The Board adopted a new standard in which the union’s request for witness statements should be granted unless the employer can demonstrate a substantial interest in keeping them confidential. This new standard is a significant departure from the old standard in that it (1) acts as a balancing test rather than a bright line rule, and (2) places the burden on employers to show that the witness statements should be confidential.

Companies can no longer promise employees that their witness statements will be kept confidential. Companies will also face greater challenges in gathering information from employees while investigating misconduct.