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. 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 company from
liability. Most 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 realties, 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 employers 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 employer 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 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.