The Workplace Investigation — National Labor Relations Board New Opinion

The workplace investigation has been forever changed - or has it?

The National Labor Relations Board (NLRB) just issued a major opinion about the place of confidentiality in workplace investigations when it held that: “Respondent violated Section 8(a)(1) of the Act by including in its confidentiality [admonitions] a prohibition against sharing private employee information [during an investigation].”

Future of the Workplace Investigation

This ruling means that employees involved in an internal workplace investigation cannot be required to keep the details of the investigation confidential unless the company can prove that confidentiality is necessary to further a legitimate business need. In Banner, the court specifically said that a workplace investigator’s admonition about confidentiality was a no-no, and it held that before giving such an admonition, an investigator must consider four factors to determine whether a confidentiality admonition is imperative. In general, the NLRB found that the employer’s “generalized concern with protecting the integrity of its investigations is insufficient” to outweigh employee labor law rights. Instead, the NLRB determined that it is the employer’s burden to first determine whether: (1) witnesses need protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover-up. If so, the employer may direct employees to refrain from discussing the matters under investigation.

Confused about the Workplace Investigation?

If you find this ruling as confusing as I do, please feel free to contact us, and we’ll be happy to help you sort through your obligations as an employer. In short, I think until the decision is overturned or clarified, employers will have to undertake this four-part analysis prior to admonishing witnesses to keep a workplace investigation confidential.