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Confidentiality in Investigations: A Trap for Unwary Employers?

A recent NLRB decision requires employers to assess the need for, and extent of, investigative confidentiality on a case-by-case basis.

Investigations in the workplace may be conducted in response to a wide variety of situations. When conducting an investigation that involves employee interviews, there are good reasons to be discreet and, when applicable, to maintain confidentiality.

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For example, when an employee raises a question about safety, it would be prudent for the company to start an investigation to ensure that it is providing its employees with a safe workplace. Discretion and confidentiality would be very important in this case; most companies would not wish to alarm employees about security if, in fact, the workplace is sufficiently secure.

Maintaining confidentiality is also important in encouraging employees to cooperate in an investigation, as they may not be forthcoming if they believe that co-workers will learn of their discussions with the investigator. Also, if the investigation becomes widely known, interviews may yield second-hand information and lead to cover-ups and evidence tampering, resulting in unreliable findings and misguided courses of action. To minimize these issues, most employers request, and often require, that employees who are interviewed as part of an investigation refrain from discussing the investigation with others.

Discretion and confidentiality are also important in encouraging employees to cooperate in an investigation, as they may not be forthcoming if they believe that co-workers will learn of their discussions with the investigator. Also, if the investigation becomes widely known, interviews may yield second-hand information and lead to cover-ups and evidence tampering, resulting in unreliable findings and misguided courses of action. To minimize these issues, most employers request, and often require, that employees who are interviewed refrain from discussing the investigation with others.

The widespread practice of keeping investigations confidential has come under scrutiny by the National Labor Relations Board (NLRB). The NLRB is charged with enforcing employee rights under federal law, even in non-union workplaces, including the right of employees under federal labor law to discuss wages, hours or other working conditions with other employees. To justify workplace policies or rules that may “chill” this right, the employer must be able to demonstrate a legitimate business justification that outweighs employees’ rights.

Because there are plenty of reasons to keep investigations confidential, most companies, until recently, believed that their confidentiality policies appropriately protected employee confidences. However, in Banner Health System dba Banner Estrella Medical Center and James Navarro, 358 NLRB No. 93 (July 31, 2012), the NLRB found that Banner’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ ... rights.” The NLRB went on to hold that Banner committed an unfair labor practice because the hospital used, in all investigations, a form that reminded interviewers to inform employees that they could not discuss the investigation with anyone else.

Individualized Determination

This does not mean that employers can never keep investigations confidential; instead, employers are barred from automatically applying the same standards of confidentiality across the board. In the Banner case, the NLRB indicated that employers must make an individualized determination about the need for confidentiality in each investigation, listing four factors to be considered. Those factors must reflect whether:

  • there are witnesses who need protection;

  • evidence may be destroyed;

  • testimony may be fabricated; or

  • there is a need to prevent a cover-up.

The NLRB’s focus on individualized determination reflects the reality that there will certainly be circumstances when confidentiality is an absolute necessity, but in other cases, maintaining confidentiality is not as important.

We recommend that, in light of the Banner decision, employers review their investigation policies and revise, as needed, any provisions that require confidentiality in every case. Policies should direct employers to assess the cause and scope of an investigation before it is launched and determine, on a case-by-case basis, whether confidentiality is truly required.