Editor’s Note – Mark A. Lies II is a labor and employment lawyer and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health and related civil and employment litigation.
Meagan Newman is a senior associate with Seyfarth Shaw specializing in occupational safety and health compliance counseling, enforcement, and related whistleblower matters.
This summer the National Labor Relations Board (NLRB) ruled that an employer’s blanket policy requiring employee confidentiality during a human resources investigation violated the National Labor Relations Act and employees’ rights to engage in concerted activity. The board said such policies interfere with statutory protections under Section 7 of the National Labor Relations Act, which include the right to communicate with co-workers about the terms and conditions of employment. The board’s decision in Banner Health System dba Banner Estrella Medical Center and James Navarro, No. 28-CA-023438 (July 30, 2012), is important because the ruling not only contradicts existing guidance from the Equal Employment Opportunity Commission (EEOC) regarding confidentiality, but may also serve to frustrate legitimate investigations regarding personnel matters, especially those involving workplace safety and health matters.
Confidentiality versus Concerted Activity
In the Banner case, the employee refused to follow his supervisor’s instructions because, according to the employee, he was concerned about safety. He was then disciplined for insubordination. Banner conducted an investigation and during the complaining employee’s interview with human resources, he was instructed not to discuss the matter with co-workers while the company’s investigation was still open. The company’s interview form also referenced that instruction. In a 2-to-1 decision, the NLRB found that the employer’s policy requiring confidentiality was based only on a “generalized concern with protecting the integrity of its investigation” and that “general concern” was not enough to outweigh the employees’ Section 7 rights to engage in concerted activity.
Complicating matters, the EEOC guidance regarding employer liability for harassment by supervisors instructs employers to take all possible steps to ensure the confidentiality of workplace investigations. The EEOC enforcement memorandum, “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors,” states that an employer’s anti-harassment policy and complaint procedure should provide “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.” These measures would sensibly include instructions to employees who participate in investigations to maintain confidentiality. The NLRB’s decision may be read to conflict with EEOC’s guidance to employers.
Loose Lips Can Sink Investigative Ships
The board’s decision muddies the water for employers who are conducting investigations regarding all manners of personnel issues, including complaints of harassment, discrimination, illegal behavior, and workplace safety concerns.
Generally speaking, the employers’ motives for keeping these investigations confidential are apparent. If confidentiality is not maintained, a witness who talks about the investigation may influence other employees’ recollections of events – whether they intend to do so or not. Witnesses may be afraid to come forward if they think that their participation is not confidential and they may withhold critical information as a result. Additionally, word of the investigation may get back to the alleged harasser or wrongdoer and they may act to influence witnesses or destroy evidence, or further harass the complaining employee. The flip side, of course, is that where an investigation reveals that the alleged wrongdoing did not take place, the alleged wrongdoer nevertheless is impacted because everyone now knows that they were accused, albeit wrongfully.
For these reasons, until now most employers’ standard investigative protocol includes advising an interviewee to keep the subject matter of the interview confidential. Acknowledging that there may be legitimate business reasons for an employer to insist upon confidentiality, the NLRB did provide some useful guidance.
It held that in order to minimize the restrictive nature of the prohibition on communication, the employer must first determine whether in any given investigation “(i) witnesses needed protection; (ii) evidence was in danger of being destroyed; (iii) testimony was in danger of being fabricated; or (iv) there was a need to prevent a cover up.” In Banner, however, the board found that the employer had failed to show that the general desire for confidentiality out-weighed the employee’s Section 7 rights.
In sum, the validity of the legitimate business reason for requiring confidentiality must be determined on a case-by-case basis. Without sufficient justification, a confidentiality instruction (or even suggestion) would be impermissible under the NLRB’s decision in Banner. Therefore, it is important that employers take steps to ensure that all investigations regarding personnel matters are conducted with care and that instructions about maintaining confidentiality are substantiated by case-specific reasons.
• Document why the confidentiality directives were given, so that the instruction may be justified if challenged.
• Where the complaining party wants confidentiality, document that request.
• Train all employees, and supervisors, that they are required to come forward with any evidence of wrongdoing, and that they will not be retaliated against for doing so.
• Review workplace confiden-tiality and anti-retaliation policies to ensure that there are no “blanket” prohibitions against communication among co-workers regarding the terms and conditions of employment.
• During an investigation, tell the employees why the investigation is being conducted and state why confidentiality is important.
October 2012 RENDER | back