As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter
The NLRB Does Not Want HR to Conduct Confidential Workplace Investigations
Please don’t shoot the messenger for this one.
The National Labor Relations Board recently held that, subject to certain limitations, employers cannot require confidentiality during ongoing workplace investigations. Specifically, discussing an investigation with co-workers is considered “collective activity” under the National Labor Relations Act and trumps workplace policies of confidentiality during investigations.
The hallmark of a workplace investigation is that the information provided and maintained remains confidential until all the facts are uncovered and a decision is made. While human resource personnel have never been able to promise anonymity in investigations, most policies promise as much confidentiality as possible. These policies are now unlawful according to the NLRB.
In the case at issue, the company’s human resource consultant routinely asked employees who made complaints not to discuss the matter with coworkers while the investigation was ongoing; it also had a “Complaint Form” that requested confidentiality during the investigation of the complained-about activity. As you know, this is routine business practice and was deemed lawful by the Administrative Law Judge who first heard the case. The ALJ upheld the practice by saying that it was justified by the employer’s concern for protecting the integrity of its investigations. Unfortunately, the NLRB overturned the ALJ on appeal and put virtually every company’s internal investigation policies and procedures on the wrong side of the law.
The Board’s holding in this case is a major shift from how companies have traditionally operated. However, it should not be shocking to those of us who follow NLRB developments. The NLRB has recently taken a “blanket is bad” approach to most workplace policies and requires companies to evaluate employee rules on an individual basis. This is no different. Human resources can require confidentiality during ongoing investigations if:
- A witness needs protection
- Evidence is at risk of being destroyed
- Testimony is in danger of being fabricated
- There is a need to prevent a cover up
While I am glad that the NLRB did not institute a blanket rule, itself, I am left wondering how, in practice, these exceptions to its rule operate. For example, how does an employer learn and then make known to witnesses before being interviewed that the company has the evidence needed to require confidentiality? The short answer is that companies generally will not have this information and thus will not be able to require confidentiality. So employers and labor counsel like me are left to guess what is and is not a lawful request for confidentiality – and given the current trend of the NLRB, I think we all know which side to err on.
What Should HRACO Members Do?
First, review your handbook and other policies regarding investigations and determine if they need modified. In the case at issue, the employer had a “Complaint Form” that employees filled out and on that form it requested confidentiality during the pendency of the investigation. If you have a similar form, it will need revised.
Second, also in the case at issue, the human resource consultant who performed the investigations told most (but not all) employees to keep the information conveyed confidential. Companies whose HR personnel have similar instructions for employees during investigations may want to consider changing those instructions.
Third, if a decision is made to request confidentiality during an investigation, the employer should document its specific reason for the request. Speaking with legal counsel before requiring confidentiality during an ongoing workplace investigation would be prudent, as well.
Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.