Investigations conducted by internal staff, usually human resources professionals, occur every day in union and non-union workplaces. The employer has the responsibility to conduct a good faith investigation and reach a reasonable conclusion when a complaint comes forward. The investigator typically requests that the witnesses interviewed refrain from discussing the subject matter of the investigation with other employees while the investigation proceeds (“the confidentiality admonition”). Often the investigator explains that talking about the subject of the investigation may taint the memories of the other witnesses, undermine their credibility, and ultimately interfere with the investigation process to reach a fair result. This confidentiality admonition is standard operating procedure and best practices for the employer.
Now the NLRB has determined that such confidentiality admonitions are unlawful. This recent holding offers further evidence that the NLRB remains very interested in actively expanding its interpretation of employees’ rights under the law.
Under the NLRA, employees have the right to communicate to co-workers about wages, hours, and other terms and conditions of employment. These Section 7 rights apply in union and non-union workplaces, even though the majority of non-union employers never give a nanosecond of thought to the application of the NLRA to their workplaces.
On July 30, 2012, in Banner Health Systems, the Board considered the actions of the employer’s human resources consultant who investigated an employee’s complaint about an instrument sterilization procedure at a hospital. The HR consultant routinely asked employees not to discuss the matter with co-workers while the investigation was ongoing.
The Board found this conduct unlawful. The Board stated that “to justify a prohibition of employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.” The Board cited an earlier NLRB decision and found the employer has the burden “’to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” The Board concluded that the blanket approach used by the HR consultant failed to meet those requirements, determined that the conduct violated the law and ordered the hospital to stop engaging in the conduct.
This is a remarkable and illogical result. Rather than using the usual and customary practice of requesting confidentiality to protect the integrity of the investigation, the investigator must now undertake a case-specific analysis to determine whether or not there are facts that would lead one to conclude that there is a danger of evidence being destroyed or fabricated and witnesses being compromised. As any workplace investigator knows, there is always the risk that evidence may be altered and witnesses may collude. There is no sure manner to preclude such a possibility, but a competent investigator takes the reasonable step to enhance the likelihood that the investigation’s evidence and witnesses will not be compromised by requesting confidentiality during the pendency of the investigation. This admonition is calculated to protect the rights of all employees, including the complainant or the accused. Both employees want integrity in the investigation to increase the probability of the investigator arriving at the “correct” factual conclusion. The employee in the right does not want employees to collude or witnesses to alter evidence; the simple step of the confidentiality admonition helps the process.
The Board’s decision does not reflect the reality of how workplace investigations should be conducted. Confidentiality is a hallmark of these investigations and needs to be preserved. Let’s hope that the appellate courts appreciate the negative impact that this decision will have on a company’s ability to competently investigate and resolve a complaint and, as a consequence, overturn this ruling.