“…You will not talk about this investigation with your coworkers.” Or at least this is the first thing that many employers have long told employees who are interviewed in workplace investigations. (Though ideally, the FIRST thing that employees should be told is that they will not be retaliated against for speaking truthfully during their interviews).
In the last four years, however, warning employees about talking about an ongoing investigation could result in an unfair labor practice charge. This Tuesday, the Board issued a new rule that employers’ workplace policies prohibiting discussions of ongoing investigations and interviews are per se lawful under the NLRA, overturning its previous standard issued during the Obama administration in 2015, which required employers to justify similar workplace policies on a case-by-case basis.
The appeal of the Board’s new rule is easy to see from an employer’s perspective. Workplace confidentiality rules related to investigations serve a number of legitimate purposes, including: assuring interviewees or reporters that their anonymity will be protected (which may lead to more honest and full disclosures), preventing information leaks, avoiding interview coaching between employees, and minimizing any interference with the effectiveness of investigations more generally. These interests can be important in situations where either investigative bodies or employers are trying to tamp down issues of theft, misconduct, or unethical behavior. Under the new Board decision, employers can institute certain investigation confidentiality policies without fear of being second-guessed in subsequent labor litigation.
There are some limitations to the new rule which employers should be aware of. First, the rule’s protections only apply to policies which prohibit discussing investigations or interviews during an ongoing investigation. This means that if a workplace policy simply states something like, “Employees are expected to maintain the confidentiality of investigations,” the policy risks a finding of unlawfulness due to its overbreadth. It is important to include some kind of limiting language which indicates to employees that they may discuss the investigation and interviews once they have been completed. Second, employees retain their right to discuss discipline, and actions which may lead to discipline, with their coworkers. Consequently, employers, when applying their confidentiality rules, should be careful to limit their enforcement of the policies to discussions which may actually undermine the effectiveness of any current investigations or interviews.
Employers should also be aware that other governmental agencies have found that the identification of individual complainants, even after the close of an investigation, may be considered retaliation for their making the complaint. While the Board’s rule above offers a safe harbor in its regulations for policies which are limited to the duration of the investigation, it may still be in an employer’s interest to maintain the anonymity of the parties who participated in the investigatory process in order to avoid other forms of legal liability.
With those thoughts in mind, I wish you all happy policy drafting (and holidays).