NLRB Revisits Confidentiality Advisements in Workplace Investigations

In its controversial ruling last summer in Banner Health System d/b/a Banner Estrella Medical Center [I have pdf of the memo to embed here] the National Labor Relations Board ruled that companies, and their investigators, may not issue blanket confidentiality requests to witnesses in workplace investigations.  The NLRB said that a company must be able to demonstrate more than just a general concern with the integrity of their investigations, but instead they must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”

This decision has been the focus of negative attention in the HR and workplace investigator communities.  If we cannot require confidentiality from witnesses, how can we keep them from harassing or intimidating other employees who may be interviewed?  How do we prevent employees from conferring and presenting “group speak” in their interviews?  How do we keep people from getting their stories straight, or destroying (or concocting) evidence?  And what about witnesses who will now be afraid to come forward with complaints of discrimination at all, because they fear they will be revealed, and retaliated against?  The EEOC’s enforcement guidance on unlawful harassment requires that employers “protect the confidentiality of harassment allegations to the extent possible,” and goes on to state that “ information about the allegation of harassment should be shared only with those who need to know about it.”  How do you square these requirements?

On April 16th, the NLRB released a memorandum in another case that revisits this issue.  In Verso Paper, NLRB Div. of Advice [I have pdf of the memo to embed here] dated 1/29/13, Associate General Counsel Barry J. Kearney advised that the employer’s rule requiring employee confidentiality in all workplace investigations was over broad.  The Verso handbook had the following requirement for confidentiality in workplace investigations:

Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Mr. Kearney reiterated Banner’s essential premise – that employers can do nothing to chill an employee’s right to exercise his Section 7 rights, including the right to discuss disciplinary investigations involving their coworkers.  He then went on to restate the Board’s position – that employers must do an individual analysis of each investigation, to determine if confidentiality is required.

While Footnote 7 in Verso offers employers some handbook language that will satisfy this “individualized assessment,”[1]the basic question for me remains the same.  When will I ever have a case that would not be jeopardized by employees going out and flapping their gums about the investigation?  In 19 years I don’t think I’ve had a single one.

Until we see a court address this issue, I still think we are faced with a situation where each investigation will still have to be assessed at the onset to determine if confidentiality is required.  Once that decision is made (I’ll give you a hint, the answer is probably “it’s required”), the decision should be documented and appropriate witness advisements should be drafted and used with every witness.

[1]Mr. Kearney suggested that Verso keep the first two sentences of its policy, strike the last two and replace it with the following language:  “Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”