NLRB objects to confidentiality of workplace investigations

The National Labor Relations Board (NLRB) has severely limited an employer’s ability to keep investigations confidential, except in very narrow circumstances. In a recent case, a hospital employee made a patient safety complaint to HR. The HR manager began an investigation into the complaint and instructed the complaining employee not to discuss the matter with other employees while the investigation was ongoing. The Board concluded that the HR manager’s instruction could potentially violate the employee’s right under the National Labor Relations Act (NLRA) to discuss wages, hours and working conditions with coworkers. According to the Board, an employer’s generalized concern about protecting the integrity of the investigation is not sufficient to outweigh employee rights under the NLRA. Only under four circumstances may an employer legally prevent employees from discussing an investigation: if witnesses need protection; if evidence is in danger of being destroyed; if testimony is in danger of being fabricated; or if there is a need to prevent a cover up (Banner Estrella Medical Center, NLRB, July 2012).

Tips: The Board’s position has created an HR firestorm. It’s standard practice when investigating a complaint to instruct interviewees that the investigation is confidential. However, it’s true, for example, that if you were to terminate two witnesses for comparing notes about their experiences of being harassed by a supervisor under investigation, your action would likely violate the NLRA. In the absence of the four factors listed by the Board, it may be best to ask (but not require) employees to keep the investigation confidential, and to restrict the scope of your request by limiting it to the duration of the investigation. The Board may not completely agree with this tactic, but as long as an employee doesn’t suffer any monetary harm as a result of your instruction, there’s no financial penalty, only the potential to be ordered to stop asking for confidentiality during investigations and to post and distribute a notice to employees. Turn to your Vigilant staff representative for help assessing whether you should make any adjustments in your investigation process. Also, check out our Legal Guide, “Conducting an Internal Investigation” (537).