Internal Investigations: NLRB Suggests Confidentiality Language

In July 2012, the National Labor Relations Board held that a blanket approach and policy requiring confidentiality during all internal workplace investigations violates employees' concerted activity rights under Section 7 of the National Labor Relations Act (NLRA).  As a result, employers were encouraged to review and modify, where appropriate, all internal investigation policies, procedures and forms to determine whether there are nondiscretionary requirements that employees always be instructed to maintain confidentiality of workplace investigations. You can read more about the July 2012 NLRB decision here.

This week, the NLRB released an Advice Memorandum that provides additional clarification on its position on confidentiality in workplace investigations.  Obviously, an Advice Memorandum does not have the same precedential value as a NLRB decision.  Advice Memoranda are helpful nonetheless as employers who follow the guidance provided in them can generally avoid prosecution by the NLRB.  As such, it's helpful to review the guidance, especially since in this instance the NLRB has provided specific approved language for employer policies on confidentiality in internal workplace investigations.

First, let's look at the language in the employer's existing Code of Conduct that the NLRB found objectionable:

"[Employer] has a compelling interest in protecting the integrity of its investigations.  In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.  To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence.  If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."

The NLRB found the employer's blanket rule on confidentiality in internal investigations overly broad and in violation of Section 7 of the NLRA.  The good news for employers is that the NLRB didn't just stop there.  It went on to offer suggested alternative language that would be in compliance with Section 7 of the NLRA.  Specifically, the NLRB suggested that the last two sentences of the above be revised as follows:

"[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence.  If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."

Insight for Employers

Confidentiality continues to be a critical aspect of the vast majority of internal workplace investigations.  It is critical for any number of reasons, including the reasons identified in the above policy:  protecting witnesses from harassment, intimidation and retaliation, keeping evidence from being destroyed, ensuring that testimony is not fabricated, and preventing cover-ups.

As such, it is imperative that employers be able to lawfully enforce their confidentiality policies and practices when the need arises.  From a pragmatic perspective, employers will also want to avoid the productivity drain caused by a NLRB inquiry.  To meet these goals, employers are encouraged to review their existing policies and practices and modify the language, as appropriate, to mirror the NLRB's suggested language.  Employers may also wish to implement a practice of documenting, on a case-by-case basis, the reasons for deciding to instruct witnesses to keep an investigation confidential.

Read more articles about managing workplace conflict at Win-Win HR, a blog by Lorene Schaefer.

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