No employer wants to conduct a workplace investigation.
But investigating an employee may become necessary to limit the company’s liability exposure, comply with legal requirements, maintain discipline, or protect other employees. And if you have to conduct a workplace investigation, you may think it should be kept confidential. After all, how many times have you read in the paper that a criminal investigator could not comment on an ongoing investigation? In employment matters, however, the National Labor Relations Board takes a different view.
The NLRB's Past Ruling
In June 2015, the NLRB ruled that employers' policies imposing a broad confidentiality requirement on workplace investigations violate the National Labor Relations Act (which was later validated by the Court of Appeals for the D.C. Circuit in 2017). Section 7 of the Act protects employees' rights to discuss terms and conditions of employment - including workplace investigations - among themselves. As such, an employer may not maintain rules or policies that interfere with the rights of employees to discuss workplace investigations (even if those rules or policies have not been enforced or resulted in actual interference with such discussions).
Confidentiality Not Completely Lost
The Board's ruling only applies to blanket policies of confidentiality. It went on to outline the circumstances in which confidentiality may be required. According to the ruling, those circumstances are present in the following cases:
▪ Witnesses need protection,
▪ Evidence is in danger of being destroyed,
▪ Testimony is in danger of being fabricated, or
▪ There is a need to prevent a cover-up.
While it is certainly easier for you as an employer to follow a policy that applies to all
investigations, the Board's action means that you will have to eliminate your broad policies in this area and evaluate the need for confidentiality on a case-by-case basis.
Not Just for Union Shops
Many employers are under the mistaken impression that the NLRA only applies to unionized employees. Although the Act was enacted in the early days of the industrial revolution to protect the rights of employees to form or join labor unions, most employees, whether unionized or not, are covered under the act. The law does not cover government workers, agricultural laborers, independent contractors, and supervisors (with limited exceptions).
As Family Business Lawyers™, we are well-versed in the federal and state laws that apply to businesses, including the general requirements of the National Labor Relations Act. Make an appointment today to discuss any questions you have about internal investigations, or schedule a LIFT™ Business Planning Session, which includes structuring the employment, financial, and tax systems you need for your business to succeed.
This article is a service of Sky Unlimited Legal Advisory PC, Family Business Lawyer™. We offer a complete spectrum of legal services for businesses and can help you make the wisest choices on how to deal with your business throughout life and in the event of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business, which includes a review of all the legal, insurance, financial, and tax systems you need for your business. Call us today at (650) 761-0992 to schedule.
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