If you are a non-union employer and thus not really paying attention to the National Labor Relations Board you are making a BIG mistake. They had made a number or rulings dealing with ALL PRIVATE WORK PLACES whether or not they are unionized. Under the National Labor Relations Act ALL private sector employees (with some exceptions such as airlines or railroads) by Section 7 that allows them to engage in “protected concerted activity.” (See Fire For Facebook “Concerted Activity”, Risk Getting a Union). In a recent ruling the NLRB has extended this protection and now according to the NLRB confidentiality is a nasty word.
In a ruling against Banner Health Systems the NLRB has said that telling employees involved in an investigation to keep information confidential is a potential violation of the employee’s Section 7 rights. Up to this point it has been COMMON PRACTICE in an investigation to request of employees being interviewed to keep what they know and what they have said quiet. The goal of most investigators (generally HR) is to get as close to the truth as possible. This is best done by collecting untainted information, in other words, the people being questioned have not passed on to others what has been asked or said. Certainly seems reasonable to me. However, not to the NLRB.
The NLRB said that any such instructions “viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights” They have gone on to say that each situation must have individual determinations made based upon:
- whether any given investigation witness needs protection;
- whether evidence is in danger of being destroyed;
- whether testimony is in danger of being fabricated; or
- whether there is a need to prevent a cover-up.
According to Ford & Harrison “…the Board held that the employer’s generalized concern with protecting the integrity of its investigations was insufficient to outweigh its employees’ Section 7 rights.” And further: “The Board held that the employer’s ‘blanket approach’ failed to meet these requirements and, accordingly, violated Section 8(a)(1) of the Act.”
The take-away from this “ruling” according to the two newsletters I received from attorneys is that you probably need to revisit your polices on conducting investigations and adapt instructions to consider the individual circumstances of each person who is being questioned under the four bullet points mentioned. The attorney/writer for Seyfarth Shaw, David Baffa, did make a point that consideration only needs to be given to employees covered by the NLRA, and that does NOT include managers and supervisors. With them you can require confidentiality.
For further reference read these two articles:
NLRB Rules That Asking Employee Investigation Witnesses To Keep Quiet Violates Section 7 Of The Act
Legal Alert: NLRB Rejects Employer’s Confidentiality Requirement for Internal Investigations