United States: Employer Investigations: Can They Be Confidential?

The National Labor Relations Board (NLRB) continues to render decisions that have a significant impact on nonunion workplaces. Two years ago, employers expressed surprise and apprehension when the NLRB issued several guidance memoranda and conducted hearings on cases in which employers had disciplined employees after they posted disparaging remarks about their employers on Facebook and other social media sites. The NLRB has opined that Section 7 of the National Labor Relations Act (NLRA) protects employees from discipline when they make certain negative comments about their workplace on social media sites.[1] (See our earlier Boston News article on the NLRB's position on social networking.)

Nonunion employers must now change their policies on internal investigations. Specifically, the NLRB has ruled that employers can no longer require employees in nonsupervisory positions to keep internal investigations confidential without a substantial and legitimate business justification for the restriction in each and every investigation. The NLRB views such restrictions as an infringement of employees' Section 7 rights under the NLRA. Employees can now speak with their co-workers and others about their involvement in a company investigation, and they can post certain information about the investigation on social media sites.[2]

This development began to take shape last July when the NLRB held in Banner Estrella Med. Ctr., 2012 NLRB LEXIS 466 (N.L.R.B. July 30, 2012), that an employer could not have a blanket policy that required employees to maintain confidentiality during an internal investigation even when the employer did not threaten discipline for violating the policy. The NLRB found such a policy would have "a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights," because the NLRB has interpreted Section 7 of the NLRA to protect employee discussions of discipline and disciplinary investigations involving their colleagues.

For the employer to restrict an employee from discussing an ongoing investigation, the employer must have a specific reason beyond a general intent to protect the integrity of the investigation. The NLRB suggested an employer could prohibit employees from speaking freely about a specific investigation only when the employer can show it is concerned with (i) the destruction of evidence, (ii) the protection of a witness, (iii) tainted or fabricated testimony, or (iv) a cover-up. Banner Estrella Med. Ctr., 2012 NLRB LEXIS 466, at *7-8.

The NLRB's acting general counsel further clarified the NLRB's position in a guidance memorandum issued January 29, 2013. He noted an employer must establish the need for confidentiality based on the facts of the particular investigation. Moreover, for the employer to infringe on an employee's Section 7 rights, those facts must give rise to a substantial and legitimate business justification, such as those concerns the NLRB listed in Banner Estrella Med. Center. Again, an employer cannot create a blanket policy requiring confidentiality in every investigation it conducts.

Many employers fear that permitting employees to speak freely during an ongoing investigation could undermine the integrity of the investigation. The disclosure of information central to the investigation could embarrass the employer, particularly when the investigation involves criminal wrongdoing. Employees might be reluctant to participate in an investigation if they believe their involvement could become public. Furthermore, discussions among employees regarding their testimony and the scope of their interviews could lead to coaching, duplicate answers and fraudulent testimony. Although the NLRB permits an employer to require confidentiality when it fears tainted testimony, an employer might not have enough factual support to overcome the requirements of the balancing test.

What should employers do in light of these recent decisions? They should document the nature of each investigation and the reasons why confidentiality is necessary. Employers should also narrowly tailor the scope of the confidentiality requirement to the parameters of the investigation and the subject matter discussed with each witness during the course of the investigation. Employers must also exercise caution before disciplining an employee for breaching confidentiality and confirm they can show there was a compelling reason for requiring confidentiality during the investigation.

Footnotes

[1] Section 7 of the NLRA provides employees with the right to self-organization; to form, join or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

[2] See Hispanics United of Buffalo, Inc., 359 NLRB No. 7 (2012).

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