Mark Flynn, Director, Specialized Legal Services
It has been a well-accepted best practice in workplace investigations for the investigator to communicate an expectation of confidentiality to participating employees during the investigation. A recent decision from the National Labor Relations Board (NLRB), however, says that this may violate employee rights under the National Labor Relations Act. The NLRB held that “the [employer’s] generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights” to engage in concerted activity for mutual aid and protection, including discussion of terms and conditions of employment. Banner Health System d/b/a Banner Estrella Medical Center, (2012).
The NLRB says that, before directing confidentiality in an investigation, an employer must first determine whether 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 coverup.
The decision is frustratingly devoid of guidance on how an employer should undertake and communicate such determinations. It leaves employers with questions about what to do in contexts like unlawful discrimination investigations, where employer defenses require investigation of complaints under policies that promise complaints and investigations are kept as confidential as practicable. Attorneys conducting investigations protected by attorney-client privilege face an equal challenge because confidentiality supports the privilege.
These issues are compounded by the fact that the scope of an investigation often evolves during its course. For example, the number of employee complainants or those accused expands or the allegations change. Myriad factors could significantly alter the initial determination of whether the confidentiality expectation is supported under the NLRB’s mandate.
MSEC’s Workplace Investigation Services has long communicated expectations to participating employees, including the expectation to treat the matter confidentially; a prohibition against retaliation; and the simple expectation to tell the truth. Practically, confidentiality is rarely achieved perfectly. But its promotion is essential to reducing the potential for retaliation and the perception of the same.
To address the NLRB’s concerns going forward, when the employer determines a confidentiality expectation is supported, it should document the bases in the investigation file. Whether it’s individualized assessment for each participating non-supervisory employee participant or for each investigation as a whole, it appears likely that justification for the confidentiality expectation will be available. That’s why promoting confidentiality has been a best practice all along. Employers must also appreciate the importance of considering employee Section 7 rights irrespective of a union’s presence. That too, might influence the suggested documentation on a case-by-case basis.