Conducting workplace investigations is one of the hardest tasks for HR managers. Getting unwilling witnesses to come forth, finding out what information is applicable, and making sure the process is as fair to the alleged violator as to the alleged victim are challenging enough without the NLRB’s influence weakening the process.
Until recently, to get a witnesses’ full and unencumbered cooperation, HR offered the witness confidentiality and asked the witness to avoid discussing the investigation with coworkers. Since Anheuser-Busch, Inc. (1978), a unionized employer did not have to disclose witness statements that were obtained from employees subject to a promise of confidentiality. The Anheuser-Busch Board even said, that forcing a release of confidential statements would “diminish rather than foster the integrity of the grievance and arbitration process.” Simply put, Anheuser-Busch protected employees against intimidation.
Thanks to the NLRB who overruled 35 years of law, HR can now only offer confidentiality in the rarest of circumstances. Witnesses are now discouraged from providing information, which will result in a deterioration in the quality and fairness of the investigation. This deterioration will be used against employers during arbitration as unions now can more easily argue that the employer did not fully investigate the situation before deciding what to do.
In Piedmont Gardens, the National Labor Relations Board said there should not be a “blanket exception” for witness statement. It instead instituted a balancing test to determine whether a union’s right to obtain witness statements trumps an employer’s assurance of confidentiality to its employees. According to the Board, asking employees not to discuss investigations with each other to ensure confidentiality and fairness is denying them their right to “protected concerted activity,” or the right to assemble and discuss workplace issues.
For an example of how this plays out in real life, consider this: An employee makes unwanted sexual advances towards a coworker. The coworker reports the behavior to HR, who immediately begins an investigation. The coworker tells HR that two other employees witnessed the behavior. HR speaks privately with each witness. To keep the investigation fair to both the alleged perpetrator and the alleged victim, HR asks each witness not to talk about the investigation with other employees. The NLRB says that instructing employees to not talk to coworkers about the investigation is unlawful.
Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.