When conducting an internal investigation involving possible disciplinary violations, employers often ask participants in the investigation to maintain its confidentiality pending completion. Last month, the National Labor Relations Board concluded that such blanket instructions violate employees’ rights to engage in concerted activity under Section 7 of the NLRA.
In Banner Health Sys., the Board actually rejected an employee’s complaint that he was terminated for engaging in protected concerted activity. Despite this conclusion, the Board majority also determined that the employer had violated the complaining employee’s rights by using an interview form during the investigation that requested that the employee keep the matter confidential during the pendency of the investigation.
The majority opinion stated that such uniform requests violate concerted activity rights because they prevent employees from discussing among themselves terms and conditions of employment. The fact that this was a request rather than a direct prohibition made no difference to the Board majority, nor did the fact that its reasoning would equally apply to internal investigations that do not involve employee concerted activity rights.
The Board pointed to previous decisions that allow employers to require confidentiality in situations where they demonstrate that such measures are necessary to preserve the integrity of the investigation. However in this case, the request was included on a pre-printed form, and the employer did not offer any explanation of why confidentiality was required in this particular circumstance.
Employers may want to cease routinely advising employees involved in internal investigations of the need not to discuss the matter with co-workers. In situations where real concerns over the integrity of the investigative process exist, employers should thoroughly document such concerns, and explain to the employee why such measures are necessary in that particular case.
