Confidentiality in Workplace Investigations Called into Question

If an HR consultant asks an employee being interviewed during an internal investigation not to discuss the matter with co-workers during the investigation, does that violate the National Labor Relations Act? According to a July 30, 2012 decision from the National Labor Relations Board (NLRB), it does. The NLRB ruled that the employer’s confidentiality requirements during an investigation violate the rights of both union and nonunion employees to engage in discussions of their terms and conditions of employment.

 

The NLRB said that employers have the burden of showing that confidentiality 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.

 

If you conduct investigations, how can you make sure the NLRB won’t charge you with unfair labor practices? Reassess your approach to communicating a confidentiality expectation to non-supervisory employees in internal investigations. Unqualified, “blanket” directions to not discuss matters under investigation should not occur.

 

If you have questions about workplace investigations, attend our upcoming class, Investigations in the Workplace​. Or, contact Mark Flynn (mflynn@msec.org or 303.223.5313) or Jody Luna (jluna@msec.org or 303.223.5306).