Confidentiality instructions in investigations may violate NLRA
Under the NLRA, the primary risk of automatically requiring confidentiality in investigations is your potential liability for back pay if you terminate an employee for violating your confidentiality rule.
Imposing an across-the-board corporate policy requiring employees to keep investigations confidential violates the National Labor Relations Act (NLRA), said the Office of General Counsel for the National Labor Relations Board in a recent memorandum. Interestingly, the employer’s policy properly listed the four exceptions laid out in a previous Board decision, Banner Health System, dba Banner Estrella Medical Center (NLRB, July 2012). The four exceptions that allow an employer to require employees to maintain confidentiality during an investigation are: (1) to protect witnesses (presumably from harassment, intimidation and retaliation); (2) to protect evidence from being destroyed; (3) to ensure testimony isn’t fabricated; or (4) to prevent a cover-up. The problem in this situation was that after listing those four reasons for maintaining confidentiality, the employer’s policy then mandated confidentiality for all future employee investigations. The General Counsel pointed out that the Board believes this should be a case-by-case assessment, and an employer’s policy should reflect that (Verso Paper, NLRB Gen. Counsel Memo, January 29, 2013, released April 16, 2013).
Tips: Under the NLRA, the primary risk of automatically requiring confidentiality in investigations is your potential liability for back pay if you terminate an employee for violating your confidentiality rule. Other than that, the worst that could happen is that the Board could order you to change and republish your policy for NLRA compliance. You should evaluate whether you want to change your policy and instructions to employees who participate in investigations in accordance with the Board’s perspective. If you choose to leave your policy “as is” and require confidentiality for all investigations, then before considering disciplinary action, contact your Vigilant staff representative for legal advice before proceeding.
Also, keep in mind that as an employer you can’t promise complete confidentiality. You should inform complaining employees that their complaint will be kept confidential to the extent possible, but will be shared on a “need to know” basis to the extent necessary to properly conduct and resolve the investigation.