NLRB (Unnecessarily) Weighs in on Workplace Investigations

August 23, 2012, 11:48 AM

The National Labor Relations Board's (NLRB) most recent effort to maintain relevance in an era of declining union membership recently landed and it's a doozy. As you will recall, in the last two years, the NLRB has busied itself with becoming the "Facebook Police" and finding that numerous employers' social media policies were unlawful because they improperly restricted employees from making negative comments about their employer(s). Not content to stop there, however, the NLRB has now decided that employers cannot have a blanket policy of asking employees who make a complaint about employee misconduct to not discuss the complaint with other employees while the investigation is ongoing. According to the NLRB, such a policy has a tendency to coerce employees and restrains their Section 7 rights (i.e. their rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection). Instead, employers must now engage in a case by case analysis, balancing the employer's concern for the integrity of its investigation against employees' Section 7 rights: "[I]n order to minimize the impact on Section 7 rights, it was [employer's] burden 'to first determine whether in any give[n] investigation witnesses needed protection, evidence [was] in danger of being destroyed, testimony [was]in danger of being fabricated, or there [was] a need to prevent a cover up.'" Banner Health System and James A. Navarro, NLRB case 28-CA-023438 (July 30, 2012).

But, you are no doubt thinking to yourself, employment lawyers are always telling us that employer investigations into complaints of employee misconduct should be kept "as confidential as possible"
don't these employment lawyers know what they are doing? Well, as hard as this may be to believe, the left hand of the federal government (NLRB) doesn't know what the right hand of the federal government (EEOC) is doing. EEOC's 1999 "Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors" has this to say about confidentiality in investigations of harassment complaints:
Confidentiality

An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis. A conflict between an employees desire for confidentiality and the employers duty to investigate may arise if an employee informs a supervisor about alleged harassment, but asks him or her tokeep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determinewhether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line which employees can use to discuss questions or concerns about harassment on an anonymous basis. (emphasis added).

As can be seen, the positions of EEOC and the NLRB on the issue of confidentiality in investigations into employee misconduct are not only not consistent with one another, they are, to some extent, antagonistic, especially where the employee misconduct at issue is harassment. This, of course, puts employers conducting investigations into allegations of employee misconduct in a very difficult position. Such investigations often are time sensitive and the necessary scope of investigation is not always readily apparent--making the analysis suggested by NLRB, on the surface, highly impractical.

In practice, however, adding the considerations suggested by NLRB to your case file and documenting your analysis of them (e.g. "Do witnesses need protection from possible retaliation-- yes; Is testimony in danger of fabrication-- yes; and is there a need to prevent a cover up-- yes") may be more of a bother than a burden. Indeed, when you think about it, retaliation is likely a concern with any significant employee complaint. There also is a danger of employees getting together to "get their stories straight" when a complaint against a co-worker or supervisor is being investigated. And, really, when isn't there a need to prevent a cover up?

So, when faced with your next investigation into employee misconduct, unless your analysis reveals it is one where there is: 1) no concern of retaliation, 2) witnesses may not lie, and 3) a cover up does not need to be prevented, you likely will find yourself erring on the side of keeping your investigation as confidential as possible under the circumstances. --Scott W. Kezman