Employers often ask employees involved in a workplace investigation to refrain from discussing details of the investigation. But confidentiality in workplace investigations has become a hot topic in recent years due in part to contradictory guidance given by the National Labor Relations Board (NLRB) on one hand, and the Equal Employment Opportunity Commission (EEOC) and Occupational Health and Safety Administration (OSHA) on the other.
The EEOC and OSHA consider confidentiality a valuable part of workplace investigations. Indeed, the EEOC suggests anti-harassment policies specifically include “assurance that the employer will protect confidentiality of harassment complaints to the extent possible.” Consistent with the EEOC’s and OSHA’s view, many employers consider admonishing witnesses to keep their interview confidential a critical part of workplace investigations.
However, the NLRB hasn’t always been on the same page. In 2015 the NLRB determined that an HR consultant violated Section 7 of the National Labor Relations Act (NLRA) – which protects employees’ rights to engage in “concerted activity” for better workplace conditions – by asking employees not to discuss ongoing investigations with their coworkers. Thus, according the NLRB’s view at the time, blanket confidentiality policies violate the NLRA, and the only way an employer can require employee confidentiality in a workplace investigation is if it can show a legitimate business justification specific to the investigation that outweighs an employee’s Section 7 rights. Banner Estrella Medical Center, 362 NLRB 1108 (2015).
But late last year the Trump Administration NLRB reversed course and overruled that prior decision. It explained that “the justifications associated with investigative confidentiality rules applicable to open investigations will predictably outweigh the comparatively slight potential of such rules to interfere with the exercise of Section 7 rights.” However, this rule does not necessarily continue in effect after an investigation is completed. Instead, an employer must show some justification for extending the confidentiality requirements beyond the duration of the investigation that would outweigh an employee’s Section 7 rights. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019).
HR professionals and others conducting workplace investigations can now breathe a little easier when instructing an employee witness to maintain confidentiality while a workplace investigation is pending. As a matter of good practice, the interviewer should explain up front why it’s important for the employee to maintain confidentiality – to protect the integrity of the investigative process itself and also to be fair to all persons involved – and end with a confidentiality reminder. But the interviewer should never promise that the employer will be able to keep everything the witness disclosed completely confidential.
Workplace investigations will continue to be an everyday occurrence in the HR world. Fortunately for HR professionals, the NLRB has now come more in line with the EEOC and OSHA with respect to requiring employee witnesses to maintain confidentiality.
