With the laudable goal of protecting the integrity of a workplace investigation, scores of private sector employers have prohibited employees from discussing internal investigation testimony with co-workers. The concern is legitimate and sensible: if employees share the questions asked and the answers given, then the investigation findings could be contaminated. Common sense, right? Not according to the National Labor Relations Board.
In Banner Health System, 358 N.L.R.B. No. 93, 2012, released July 31, 2012, the NLRB majority held that an employee's Section 7 right to engage in protected concerted activity outweighed an employer's generalized concern in safeguarding internal workplace investigations. The Section 7 protections include a union or non-union employee's right to engage in "concerted activities," which include discussions about wages, hours, and other terms and conditions of employment. In Banner, the NLRB focused on a non-union employer's standard complainant interview form which, in part, included a prohibition against discussing ongoing investigations. The NLRB rejected the employer's explanations that: it merely suggested (versus mandated) employees not share information; while its HR consultant did give that instruction to the charging party, she did not give it to every employee being investigated; and she did not expressly threaten discipline for a breach. Rather, the Board found the employer's "blanket approach" to confidentiality (as evidenced by the form and the HR consultant's testimony) "had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights."
To minimize the impact on Section 7 rights, the Board adopted a more individualized approach. The employer has the burden to make a case-by-case determination of the actual need for confidentiality in a particular investigation, by considering whether: (a) any witnesses need protection; (b) any evidence was in danger of being destroyed; (c) any testimony was in danger of being fabricated; or (d) there was a need to prevent a cover-up. Apparently those valid concerns (which, in whole or part, are present in most investigations) are not already encompassed under the phrase "integrity of the investigation."
This decision highlights the Board's continued aggressive quest to expand Section 7 protections under the cover of "protected concerted activities" to seemingly nonsensical levels -- like its assault on social media and handbook language. Practically speaking, private sector employers should not enforce a "blanket" confidentiality requirement for internal workplace investigations. Rather, they should determine, on an individualized basis, whether any of the above concerns are present -- necessitating confidentiality to effectively conduct the investigation. Employers should train personnel involved in workplace investigations about this recent development. Because the employer has the burden of proof if it seeks "confidentiality" in a particular investigation, it should document its rationale.