Employer Beware! Confidentiality and Integrity of Workplace Investigations At Risk

Contributed by Beverly Alfon

Whether you are operating with a union workforce or non-union workforce – this warning applies to you. When an employee engages in misconduct, most employers prudently begin an investigation before meting out discipline. These investigations often involve speaking to the alleged offender and other potential witnesses.  In the interest of protecting the integrity of the process, employers routinely ask the interviewees to refrain from speaking with others regarding the investigation or any related matters while the investigation is pending.  The National Labor Relations Board has found that this routine request is unlawful.    

In Banner Health System, d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), an employer’s HR consultant read from a prepared script on an “Interview of Complainant” form that the employer regularly used to begin investigatory interviews of employees. One of the standard statements instructed the witness that s/he was prohibited from discussing matters related to the investigation until the investigation was complete.  The Board found this directive to be a violation of the National Labor Relations Act.  It reasoned that the uniform directive “had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights” to engage in protected concerted activity.   The employer should have first determined whether or not it had “a legitimate business justification that outweighs employees’ Section 7 rights.”  The Board’s disapproval was focused on the employer’s “blanket approach” of imposing the confidentiality restriction for every investigatory interview.  Instead, the Board explained that an employer must make a determination, on a case-by-case basis:  “(i) whether witnesses [need] protection; (ii) evidence [is] in danger of being destroyed; (iii) testimony [is] in danger of being fabricated; or (iv) there [is] a need to prevent a cover-up.”  If one or more of these conditions exist, then an employer will have a stronger basis to argue that its interest in protecting the integrity of the investigation outweighs the employees’ Section 7 rights.

So, now what?  Review your investigation policies, procedures and forms. They may need to be tweaked to remove any language that may be interpreted as creating a blanket prohibition against the discussion of workplace investigations among employees.  Also, consider the inclusion of a four-point checklist on investigatory forms/documents to document a case-by-case consideration of the Board’s factors – before issuing a confidentiality directive to a witness.  Where a confidentiality directive would not be appropriate, “blitz” interviews or sequestering witnesses may be an option to preserve the integrity of the investigation.