NLRB Rules on Keeping Employees From Discussing HR Investigations
Companies may want to think twice about how they instruct employees to keep mum during internal HR investigations, following a recent ruling by the National Labor Relations Board.
Last month, in a case involving Banner Estrella Medical Center, the NLRB ruled that a blanket policy requiring employee confidentiality in the course of an HR investigation violates employees rights to engage in concerted activity under Section 7 of the National Labor Relations Act. In other words, the board said: you cant have a policy that keeps employees from talking to one another about problems in the workplace.
What was surprising about the decision was that it went contrary to most established HR best practices, says Scott Silverman, of counsel at Akerman Senterfitt in Tampa. Prior to this decision, it was thought that all investigations should be conducted with confidentiality directives to the extent possible.
Now, the trick for employers is how to revisit confidentiality directives and still uphold their obligations to maintain confidentiality according to U.S. Equal Employment Opportunity Commission enforcement guidance.
An employer still has an obligation to maintain confidentiality to the extent possible, says Lorene Schaefer, mediator and workplace investigator with One Mediation. "And that has to be balanced against the employees right, under the NLRA, to engage in concerted activity.
First things first for in-house counsel: Review your companys current policy. While it remains to be seen how a court would rule on the issue, the NLRB has made its stance known. I believe an employer should no longer have a blanket policy on confidentiality, Silverman says. Clearly the board would find that to be unlawful.
Next, get ready to do some more work up front. The NLRBs decision doesnt put an end to confidentiality, but rather requires that employers back up the decisions with specific reasons, on a case-by-case basis. As Silverman noted in a previous blog post, those reasons may include witness protection, and preventing cover-ups or the destruction of evidence.
To me, its more of a documentation issue, says Silverman. So the employer just has to do a little more work on the front end and document why the confidentiality directives were given, so that down the line you can justify it. That, I think, is the best practice right now.
At the same time, employers still have a duty to maintain confidentiality. So Schaefer recommends articulating, in the companys formal policies or procedures, the factors that youll take into account when considering whether confidentiality is appropriate in a specific investigation.
And I think one of the primary factors that youre going to consider is: what does the complaining party want?, she says.
The complaining party almost always wants an investigation to remain confidential, notes Schaefer, former general counsel at GE Transportation. But even if this seems like a given, she says, where the complaining party wants confidentiality, document it. You may even ask that an employee sign a document to that effect, she adds.
That can serve two purposes. I think its going to go a long way toward defending yourself against a potential NLRB claim, Schaefer says. And on a practical level, youve done what the complaining party wishes.
Michael Arnold, an associate at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo in New York, sees another risk that employers may want to curb, too. If employees become concerned that an employer cant guarantee confidentiality, they may be reluctant to come forward to report problems.
So training staff and supervisors that you are required to come forward with any evidence of wrongdoing, and that you will absolutely never be retaliated against for doing that, is an important step, Arnold says. That to us is the greatest way to mitigate this potential problem.
See also: EEOC Warns Against Silencing Employees During Investigations, CorpCounsel, August 2012.