Further Guidance: NLRB General Counsel's Office Weighs In On Confidentiality During Workplace Investigations

by Polsinelli

Recently, the National Labor Relations Board's (NLRB) General Counsel Division of Advice ("Division of Advice") released a memorandum offering guidance to an NLRB Regional Director concerning employers requiring confidentiality during workplace investigations.

The memorandum follows an August 2012 decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 99 (2012). (Click here to read Polsinelli's August 2012 alert.) The NLRB (1) reviewed an employer's blanket policy of requiring witnesses to maintain confidentiality during workplace investigations (such as those investigating allegations of discrimination, harassment or other workplace issues) and (2) held that routinely warning employees against discussing ongoing internal investigation into employee conduct violates employees' Section 7 rights under the National Labor Relations Act ("NLRA").

The NLRB's Banner Health System decision impacts unionized and non-unionized employers alike.

At that time, we reported: "The burden is on the employer to justify in each instance the presence of a legitimate business justification. Absent one of the listed business justifications, the NLRB will likely find that a policy promising confidentiality during an investigation 'had a reasonable tendency to coerce employees' in the exercise of their rights under Section 7."

The employer in the case maintained a Code of Conduct which included the following provision prohibiting employees from discussing ongoing investigations (emphasis added):

(The Company) has a compelling interest in protecting the integrity of its investigations. In every investigation, (the Company) 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. To assist (the Company) in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Further interpreting the NLRB's Banner Health System decision, the Division of Advice stated the highlighted portion of this provision violated Section 8(a)(1) of the NLRA because it failed to take into account the employer's burden to demonstrate, with each specific investigation, its business justification for maintaining a confidentiality rule that outweighed its employees' rights to discuss such workplace concerns.

Nevertheless, the Division of Advice offered substitute language it stated would be considered lawful in replacement of the highlighted portion of the provision:

(An employer) may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If (the employer) reasonably imposes such a requirement and (employees) do not maintain such confidentiality, (the violating employee) may be subject to disciplinary action up to and including immediate termination.

In other words, according to the Division of Advice, if an employer makes confidentiality discretionary, on an investigation-by-investigation basis, a policy similar to that recommended by the Division of Advice would likely pass the NLRB's scrutiny. The combined language could help bolster an employer's position that a confidentiality instruction to employees was not for the purposes of "chilling" employees' Section 7 activity.

A word of caution: The Division of Advice's suggested language does not by itself ensure a company will immunize itself from NLRB violations - but it does advise employees in advance that, if such a confidentiality determination is made by the company, employees who violate it could be disciplined. Even if the suggested rule is adopted however, employers will still have to make case-by-case determinations on whether there is a need for confidentiality in the investigation. Generalized concerns about preserving the integrity of investigations is insufficient to avoid a violation of the Act. Factors supporting an individualized analysis include protection of witness , danger of a cover-up or fabrication of evidence. If these are reasonably determined to be a basis for concern, a confidentiality directive for that case will likely be upheld. This memorandum also indicates the suggested language above should be viewed favorably by the Board.

Employers should consider further reviewing and revising work rules and internal investigation procedures and practices involving confidentiality and should contact labor and employment counsel for further guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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