Are you looking for a way to get sued when you investigate
employee misconduct? Then prohibit employees from discussing the
investigation with their co-workers. If you are scratching your
head at that bizarre pronouncement, you are not alone. A federal
agency that enforces employment laws recently decided that blanket
confidentiality instructions to employees during internal
investigations can violate the law and are not justified by the
employer's generalized need to protect the integrity of the
investigation. The ruling applies to both union and non-union
employers. There are, however, ways to minimize the risk of
liability under this new standard.
Ignoring allegations of workplace harassment, discrimination,
theft, or other misconduct increases potential liability on several
fronts. On the other hand, a prompt investigation followed by
appropriate remedial action can help insulate your nonprofit from
liability. Most nonprofit employers routinely instruct employees
who are interviewed during an internal investigation to keep the
matter confidential. Maintaining confidentiality not only reduces
the chance that someone will destroy evidence or improperly
influence witnesses, it also promotes anti-discrimination policies.
For example, an employee who has been subjected to sexual
harassment may be too embarrassed to complain if she thinks the
circumstances will become widely-known. That, of course, is a
ticking time bomb in your workplace.
Notwithstanding these realities, the National Labor Relations
Board ("NLRB") recently decided that an employer violated
federal law by instructing its employees not to discuss a pending
internal investigation with co-workers. Banner Health System, 358 NLRB No. 93 (July 30,
2012). The NLRB reasoned that the blanket confidentiality
instruction interfered with employees' legal rights under
federal law because it had the effect of prohibiting them from
discussing matters of mutual interest, such as compensation and
discipline. To avoid liability, the NLRB continued, the employer
must prove that it had specific reasons to require confidentiality
and those reasons outweigh the employees' rights to
communicate with each other. Although the NLRB usually deals with
unionized workforces, this ruling also applies to non-union
employers.
Because nonprofits should continue to investigate suspected
employee misconduct, they should modify their procedures to
minimize the risk of a claim under this ruling. Employers can
instruct supervisors and managers (who are not covered by the
particular law in the Banner Health case) to keep
investigations confidential. With respect to non-supervisory
employees, however, rather than impose an absolute confidentiality
requirement, give a modified instruction depending on the
particular employees involved and the circumstances of the
investigation. An individualized approach can better protect the
nonprofit if it specifically determines that confidentiality is
required because an employee needs protection from retaliation,
there is a danger of evidence being destroyed or fabricated, or
there is a need to prevent a cover-up. The nonprofit employer also
can include in its instructions that the confidentiality
requirement is limited to matters related to the investigation, but
not to other terms and conditions of employment. As with other
employment actions, it is important to document this analysis and
the specific instructions given in the event the investigation is
challenged.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.