Many employers maintain rules in their employee handbooks or personnel policies governing how investigations of possible employee misconduct will be handled. Such rules often include admonishments to employees about maintaining the confidentiality of the investigation and, therefore, they implicate Section 7 of the National Labor Relations Act and protected concerted activity. Indeed, in Banner Health, 358 NLRB No. 93 (2012), the National Labor Relations Board held that a blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation. Thus, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”
Since Banner Health, employers have struggled to find wording for their investigations rules that passes legal muster while conveying the clear message that confidentiality is a possibility. Fortunately, the struggle appears to be over, thanks to a recent decision of the NLRB’s Division of Advice.
A union filed an unfair labor practice charge at a Regional Office of the Board against an employer, alleging the employer’s investigations rule was unlawful. Following investigation of the charge, the Regional Office asked the NLRB’s Division of Advice for an opinion whether or not to issue a complaint. The Division decided a complaint should be issued alleging the rule was unlawful. The Division also set forth the following wording of a lawful investigations rule:
[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] 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 a cover-up. [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
Although Division of Advice decisions are not binding on the five-member NLRB, those decisions serve an important function in the processing of unfair labor practice charges. They weigh heavily in regional officials’ decisions to issue unfair labor practice complaints (or dismiss charges) in the absence of a definitive Board decision. Few unfair labor practice charges are referred to the Division for review by Regional Offices, but those Regional Offices are well aware of the Advice Memoranda issued by the Division. Therefore, an employer that adopts the rule set forth above, deemed lawful by the Division, is much less likely to face a complaint from a Regional Office.