Employers conduct fact-finding investigations for many reasons—allegations of harassment, theft, falsification of records, and other misdeeds. Employers typically require employees to keep the investigation confidential. The reason is simple: to avoid jeopardizing the integrity of the investigation, protect employees from retaliation, and help assure that any action taken as the result of the investigation is based on full and accurate facts.
The admonition was standard procedure until the NLRB ruled last year in Banner Health, 358 NLRB No. 93, that a blanket confidentiality rule is invalid under Section 7 of the National Labor Relations Act. As a result of Banner Health, union and non-union employers bear the burden of showing a particularized need for confidentiality in each investigation. Many employers find this time consuming and burdensome, particularly where time is of the essence, as is so often the case.
On April 16, 2013, the NRLB’s Office of General Counsel provided some welcome guidance in an Advice Memorandum concerning Verso Paper’s Code of Conduct. In a footnote, the NLRB stated that it considers the following policy lawful:
[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, it 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.
While the NLRB did not endorse an across-the-board confidentiality rule and the Advice Memorandum is not binding, it sends a strong signal that policies like the one above will survive challenge. Employers are well advised to revise existing policies and assure that statements made in connection with an investigation adopt this approach. Doing so should satisfy both the employer’s legitimate interests in a sound investigation and comply with the NLRB’s current standards. For more information on this issue, please see Ingrid Culp’s article EEOC and NLRB Caution Employers Against Asking or Requiring Employees to Keep Workplace Complaints Confidential.