By Cary Burke
Recent rulings by the National Labor Relations Board have made it more difficult for employers to protect the integrity of internal investigations concerning employee harassment and other misconduct. Per the Board, blanket policies requiring employees to maintain the confidentiality of internal investigations violate Section 7 of National Labor Relations Act (NLRA) by interfering with an employee’s right to discuss either discipline or disciplinary investigations with other employees. Now, a more tailored approach to employee confidentiality rules is required.
Under current Board precedent, employers may require employees to maintain the confidentiality of an ongoing investigation if the investigation would be tainted or “corrupted” if it did not remain confidential. Investigations could be “corrupted” in instances where:
- Necessary witnesses were in need of protection;
- Critical evidence could be destroyed;
- Testimony could be fabricated; or
- The employer fears a “cover-up.”
An employer’s generalized fears of witness intimidation or retaliation will not suffice. Instead, the employer must be prepared to demonstrate that it has a legitimate and substantial need for confidentiality in a specific investigation, based upon particularized facts and circumstances. Absent bona fide justification, employers should not prohibit employees from discussing ongoing internal investigations among themselves. Importantly, the employer may, and in many cases should, promise to keep its investigation confidential. Doing so may preserve legal defenses, depending upon the nature of the allegations under investigation. An employer’s assurances to reporting employees that the employer will maintain confidentiality also mitigate against any chilling effect on employees’ willingness to report misconduct.
Looking ahead, employers should verify that their confidentiality policies are in line with the Board’s new standard. An appropriate confidentiality policy should explain, in readily-understandable language, both that the employer will maintain the confidentiality of its investigation, and that employees may be required to maintain confidentiality if necessary under the particular facts and circumstances.
If a need for an internal investigation arises, employers should meet with labor counsel to determine whether a legitimate and substantial need for maintaining the confidentiality of an investigation exists.