Confidentiality in the context of workplace investigations is a very popular issue for employers–and workplace investigators–thanks to a July 30, 2012 decision from the National Labor Relations Board (NLRB). That decision examined whether an HR consultant asking employees interviewed in connection with an internal investigation not to discuss the matter with co-workers during the investigation violates the National Labor Relations Act. Banner Health System (NLRB 2012). The NLRB ruled that the employer’s confidentiality expectations during an investigation violate the rights of both union and nonunion employees to engage in discussions of their terms and conditions of employment. These are commonly described as “Section 7 rights.”
The NLRB’s decision states that the employer’s need to protect the integrity of its investigation, as supported by the confidentiality expectation, must be balanced against employees’ Section 7 rights. The NLRB said that employers have the burden of showing that a confidentiality expectation is justified because witnesses need protection; evidence is in danger of being destroyed; testimony is in danger of being fabricated; or there is a need to prevent a cover up.
An opinion letter from the Buffalo, New York field office of the Equal Employment Opportunity Commission (EEOC) on August 3, 2012, added more fuel to the fire. That letter asserts that an employer’s written policy of prohibiting employees from discussing an ongoing investigation under threat of discipline is, in itself, unlawful under Title VII. Many commentators argue this letter is reasonably at odds with the EEOC’s published 1999 Enforcement Guidance which states, “An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.” It is not known whether the EEOC will attempt to enforce this position nationwide.
For now, employers must reassess their approach to communicating a confidentiality expectation to non-supervisory employees in internal investigations or risk unfair labor practice charges from the NLRB. Unqualified, “blanket” directions to not discuss matters under investigation should not occur. MSEC will continue to address this issue and provide best practices guidance in upcoming publications including the October Bulletin. Contact Mark Flynn (firstname.lastname@example.org/303.223.5313) or Jody Luna (email@example.com/303.223.5306) in Workplace Investigations at MSEC with additional questions.