The National Labor Relations Board (NLRB) continues to challenge previously unscrutinized workplace policies and practices that restrict communications among employees of either a non-union or union employer. The latest example is Banner Estrella Medical Center, 358 NLRB No. 93, slip op. (July 30, 2012), in which the Board held that the employer violated the law by requesting that an employee refrain from discussing his workplace complaint with coworkers while the employer was conducting a confidential internal investigation.

Stating that an employer must have a legitimate business interest in maintaining the confidentiality of its investigation to make such a request, the Board held that an employer’s general concern with protecting the integrity of the investigation is insufficient. This advisory explains when and how employers and their investigators can still ask witnesses to keep matters confidential.

NLRB guidelines for employer work rules
The National Labor Relations Act (the “Act”) prohibits employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective-bargaining purposes, from working together to improve terms and conditions of employment, or refraining from any such activity. An employee’s rights under the Act are often referred to as ““Section 7 rights” or the right to engage in “protected concerted activities.” Employee rights and employer obligations under the Act apply to both unionized and non-union employers.

In evaluating whether an employer’s work rule violates the Act, the Board examines whether the rule (1) overtly restricts employees’ exercise of their § 7 rights; or (2) has been drafted so broadly that a reasonable employee would conclude that § 7 rights are subject to the rule. As DWT recently reported with regard to social media policies, the Board’s concern with employer work rules has made many employers question how to regulate employee conduct within the bounds of the Act.

So what is an investigator to do?
Employers investigating matters in the workplace can still ask witnesses to keep matters confidential if the following factors are present:

• Certain investigation 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.

So, blanket policies requiring confidentiality of all investigations and all witnesses are no longer valid. Instead, employers must identify which, if any, of the above factors require confidentiality under the circumstances of each investigation. The employer should document the reasons and explain them to the employees. As the Board held that a generalized concern for the integrity of the investigation is not a legitimate business interest, employers can expect that the Board will require some evidence specific to each investigation to justify the request for confidentiality.

Recommended actions
Although the Board’s decision could be appealed, until and unless a reviewing court refuses to enforce the Board’s order, employers will have to work within the Board’s ruling or risk having to defend an unfair labor practice charge themselves.

The task for HR professionals and investigators is to consider:

• The nature of the complaint, and the circumstances in the workplace;
• The potential witnesses; and
• Where and in what form the evidence might be found.

There are numerous, legitimate reasons that an employer may need employees to keep pending workplace investigations confidential, and simple ways to articulate that reason to employees, such as:

• Potential witness intimidation: “If what you’re telling me is true, we need to make sure [the alleged perpetrator] doesn’t try to intimidate other witnesses; to protect them, I’d appreciate it if you kept the details of our conversation confidential.”
• Insecure evidence: “It sounds like that information is only on that thumb drive; until we can get that and copy the information, the information you’ve given me should remain confidential.”
• Potential witness collusion: “If this gets back to him before we can set up any interviews, he might have time to convince some people to change their stories. To be on the safe side, I don’t think you should discuss this with anyone else.”

Employers and their investigators must avoid relying on the common sense basis for requesting confidentiality during a pending workplace investigation, and avoid assuming that employees will automatically understand the basis for such a request. By creating a record from the very start and pointing to easily-proved factors warranting confidentiality, employers and HR professionals will be well-positioned to respond to any unfair labor practice charges that may arise.