We have been discussing the who, what, when, where, why and how of workplace investigations. Many of us have heard about recent National Labor Relations Board (NLRB) rulings holding that requiring confidentiality in workplace investigations may be illegal. How can that be? What is behind such a ruling and how do employers and HR practitioners conduct effective investigations if the ability to ensure their confidentiality may no longer be a given? That is this week’s issue, which The Emplawyerologist will hash out after the jump…
If you read The Emplawyerologist’s last two posts, (and you can get them here and here if you did not), then you remember that we talked about the Farragher/Ellerth defense that arose out of two US Supreme Court cases. Simply put, if you want to avoid vicarious liability for co-workers’ bad acts, you need to show that you acted promptly and reasonably once you knew of the alleged misconduct. Investigations are considered a necessary part of prompt and reasonable action. Requesting confidentiality from participants can ensure a smooth, expeditious and thorough investigation. Who would argue that an investigation conducted where everyone in the workplace has heard some details and then starts spreading rumors undermines an employer’s ability to respond appropriately? It would seem then that employers/HR practitioners have the obligation to require confidentiality and to take any steps, such as disciplinary action, termination or the like to meet that end, right? That certainly makes sense—except that the NLRB doesn’t exactly see it that way.
Last year, the NLRB ruled on this very issue in National Banner Health System. While many think of the NLRB as only governing workplaces with unions, that is not so. Last fall, when I posted on employment-at-will disclaimers and the NLRB I explained that Section 7 of the National Labor Relations Act (NLRA) affords employees the right to engage in protected concerted activity. (Click here for a review of that concept). Getting back to National Banner Health System, hospital employee Jim Navarro, opposed a direction that he felt violated established hospital procedure. Navarro’s supervisor reported him to HR. HR judged him insubordinate and issued him a nondisciplinary coaching. Navarro later received a bad performance review. Navarro filed an Unfair Labor Practice charge with the NLRB stating that Banner retaliated against him for engaging in protected concerted activity. The Administrative Law Judge (ALJ) found no violation of labor laws. While the NLRB affirmed those findings on appeal, it found that Banner’s confidentiality policy relating to investigations violated the NLRA.
Wait. Didn’t we just establish that we need confidentiality to ensure a smooth, thorough and effective investigation? According to the NLRB, a “generalized concern” about protecting the integrity of an investigation “is insufficient to outweigh the employees’ Section 7 rights”. Wait again: Isn’t the idea of Section 7 of the NLRA to protect workers’ rights to unionize? If so, wouldn’t requiring confidentiality in investigations be irrelevant to Section 7 (because it is not intended to prevent employees from unionizing) ? The current NLRB says “No”, Section 7 protects the employee’s right to discuss work conditions whether or not they ultimately intend to unionize. So does the NLRB now prohibit imposition of confidentiality policies in the context of workplace investigations? Not exactly. The ruling states that confidentiality can be justified — on a case by case basis. Blanket policies in handbooks, allowing employers enforce them through termination and/or other disciplinary measures, however, are now “out”. Employers must now demonstrate a legitimate and substantial business justification that outweighs employees’ Section 7 rights and “determine whether in a given situation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover-up”.
So is that it then? Should you just “scrap” your policies and procedures requiring confidentiality and evaluate every case individually? Thankfully, the NLRB has recently dialed things back a bit. On January 29, 2013 the NLRB’s Office of the General Counsel (OGC) evaluated someone else’s policy with the following similar provisions:
[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. Ife we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
The OGC issued an Advice Memorandum in which it found the first two sentences valid, and the last two sentences overbroad because they interfered with employees’ Section 7 rights. According to the OGC, the last two sentences did not consider the employer’s burden of showing on a case-by-case basis, its business justification for the confidentiality requirement and that such business justification outweighs the employee’s Section 7 rights. So what, according to the OGC, can an employer say in its policy without running afoul of Section 7? The OGC provided the following as suggested alternative language:
[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 termination.
Do you see the difference? Yes, of course it contains fewer words, but that is not the difference we care about right now. The employer’s policy contained a blanket provision against talking to anyone else about the investigation or underlying facts. In the OGC’s suggested revision, the employer still reserves the right to require confidentiality, but it is not an across-the-board policy. For what it is worth then, the NLRB is not telling employers to abandon confidentiality policies regarding workplace investigations, but rather to revise them such that they recognize the employer’s responsibility to evaluate the need for confidentiality on a case-by-case basis.
Wait again! Haven’t I been saying in my of my previous posts, that employers should apply the same practices to every employee? Yes I have and I stand by that as a general rule. If however, a federal law or ruling requires an exception, well then we have to make that exception, while adhering to another general rule I have articulated many times: Document what you do why you did it, and maintain records or other evidence that supports your reasoning. Yes, these NLRB requirements make employers’/HR practitioners’ jobs harder. No, technically, the NLRB’s ruling out of one or even more regional offices is not actually “law”. However, ignoring the NLRB could make you its next target unless and until a court overturns the ruling on appeal. If you do not want to spend significant dollars fighting the NLRB, review and revise your policies and retrain your HR department and managers in this area.
We are not quite done ! The EEOC has also weighed in on confidentiality requirements during workplace investigations, so come back next week and see what that’s all about!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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