Companies Continue to Struggle with Limitations on Confidentiality

The National Labor Relations Board has been clear that companies cannot impose a blanket confidentiality rule on employees during investigations. However, it seems that employers are still having difficulty with this new standard. In a recent case, a hospital used company forms that requested that employees interviewed during company investigations keep the interviews confidential and instructed employees “not to discuss this with your coworkers while this investigation is going on.” The Board reaffirmed its standard that this limitation is unlawful.

Under new Board law, to impose a confidentiality requirement on an investigation, an employer must show that there are “objectively reasonable grounds for believing that the integrity of the investigation will be compromised without confidentiality.” The burden will be on the company to demonstrate that it has a legitimate and substantial confidentiality interest in the information. To establish a “legitimate and substantial confidentiality interest,” an employer must determine whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or if there if a need to prevent a coverup. If an employer can show one of these factors is at play in the investigation, then the Board will weigh the Company’s interest in confidentiality against the Union’s need for the information.

Companies can no longer instruct all employees to keep information shared during the investigation process confidential without risking a violation of Section 8(a)(1) of the National Labor Relations Act. Companies need to ensure that they train their investigators to refrain from promising employees confidentiality in exchange for their participation in an investigation. Companies should also ensure that they revise company forms or handbooks that promise confidentiality.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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