An important decision was recently issued by the National Labor Relations Board (NLRB) which directly impacts (1) every internal investigation conducted by or on behalf of a company and (2) the ability of the employer to tell employees that the internal investigation is confidential and not to discuss it with other employees.  Employers who routinely direct employees not to discuss internal investigations, due to confidentiality, should be prepared to demonstrate that confidentiality is necessary to further a legitimate business interest.  This NLRB decision applies equally to unionized and nonunion employers.

Beware Infringing on Employees’ Rights to Discuss Discipline or an Internal Investigation

In Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (June 26, 2015) the labor board ruled that a general employer policy requiring confidentiality by employees during an internal investigation would unlawfully interfere with an employee’s rights to discuss discipline or on-going disciplinary investigations of themselves or co-workers. 

Consider Four Guidelines Before Issuing a Blanket Confidentiality Statement

Now, instead of being able to tell employees with a blanket statement that the internal investigation was confidential and not to talk to fellow employees about it, the NLRB stated that in order for such a warning to be given, the employer must consider whether:

  1. An investigation witness needs protection
  2. Evidence may be destroyed
  3. Testimony may be falsified
  4. Preventing a cover-up is an issue

Employers and their investigators must now also consider the nature of the investigation, the identity of the witness, and the necessity of giving a confidential warning to employees who are being interviewed.

More Steps Every Employer Should Take

So what should you do to protect the confidentiality of the internal investigation, comply with NLRB guidance, and prevent employee complaints that could, in some cases, result in a lawsuit, settlement or other form of sanction?

  1. Review your internal investigation policies.
  2. Revise forms you give or show to witnesses being interviewed the confidentiality of the internal investigation is confidential
  3. Discuss this decision with Human Resources to avoid potential violations of the National Labor Relations Act.

Finally, as the Association of Certified Fraud Examiners (ACFE) has pointed out, it may also be necessary to retrain your HR professionals.

This blog is for informational purposes only and does not constitute a legal opinion or advice.