NLRB CURTAILS EMPLOYER DISCRETION REGARDING DISCIPLINARY INVESTIGATIONS, by David A. McClurg

Posted by Attorney Roger L. Pettit / Comments

In yet another expansion of the NLRB’s view of the scope of “concerted protected activity” under Section 8(a)(1) of the National Labor Relations Act (the "Act"), The Board recently held that an employer's instruction that employees not discuss matters under investigation with their co-workers violated the Act because it "had a reasonable tendency to coerce employees in the exercise of their rights" under the Act (i.e., the right to organize, participate in concerted activities and collectively bargain) - even though that request was not tied to a threat of discipline. In the Board’s view, "[t]he law… does not require that a rule contain a direct or specific threat of discipline in order to be found unlawful." See Banner Health System, 358 NLRB No. 93 (July 30, 2012).

This decision applies to both unionized and non-unionized workplaces. Thus, all employers, not just those with unionized operations or facing organizing drives, may face unfair labor practice charges alleging that policies calling for confidentiality concerning investigations unlawfully “coerce” employees. Banner Health follows and builds upon other recent cases regarding social media and at-will employment, in that it seeks to expand the Board's oversight of non-unionized workplaces where employers are perceived by the current Board to be more likely to infringe upon employees' Section 7 rights, including the right to engage in “concerted protected activity.”

The Board specifically held that an employer's "generalized concern with protecting the integrity of the investigation" is insufficient to justify the employer's call for confidentiality. However, the Board did suggest that an employer may lawfully require that an investigation be treated as confidential if the employer can demonstrate that the request is based upon:

1. the need to protect witnesses;
2. a likelihood that evidence may otherwise be destroyed;
3. the threat that subsequent testimony would be fabricated; or
4. the need to prevent a cover-up.

Unfortunately, the Board offered no guidance as to what type of proof—general or specific, subjective or objective—will be required to satisfy this burden.

One of the most significant issues raised by this decision is its potential impact on workplace safety, privacy, and discrimination laws that require employers to investigate sensitive allegations or issues that often call for at least some degree of confidentiality. As a practical matter, limitations on an employer's ability to ensure confidentiality may dissuade employees from bringing concerns to management's attention, as well as from participating in investigations. Such reluctance may unreasonably expose employers to liability given the increased difficulty in recognizing and remedying improper or unlawful actions.

Additionally, the limitation on confidentiality instructions will impair the employer’s ability to make reliable credibility determinations. One of management’s most powerful tools in reaching such credibility determinations is the comparison of the versions of events provided by those involved, directly or indirectly, in the incident(s) under investigation. Without the ability to request that the first employees to be questioned maintain confidentiality, the investigator will have less confidence that consistent stories from subsequent interviewees reflect the truth or a convenient consistency based on discussions with the first employee interviewed.

Despite its broad impact on investigations involving employees, the import of the decision does not extend to supervisors and managerial employees. Thus, employers remain free to require that supervisors and managers maintain confidentiality in connection with any investigation, regardless of whether the employer can articulate an explanation for its actions that would satisfy one of the exceptions referenced above. Of course, the determination of who is a supervisor and who is an employee under the Act is a question that may require independent consideration.

What Employers Should Do Now

Employers should proceed cautiously given the absence of substantive guidance from the Board concerning the “exceptions’ outlined above. First steps for remedying potentially overbroad confidentiality requirements might include:

• Eliminating blanket non-disclosure requirements from investigatory procedures;
• Re-evaluating those policies that expressly connect the violation of a non-disclosure requirements with disciplinary action;
• Developing and implementing revised policies concerning investigations that emphasize promotion of confidentiality on a case-by-case basis, particularly where there is evidence of the need to:

1.   Protect witnesses and/or evidence; or

2.   Prevent the fabrication of testimony or a cover up.

• Encouraging management representatives to discuss concerns with their supervisors prior to requesting an employee maintain confidentiality; and

• Training human resources employees who conduct investigations on:

  • Determining which investigations require confidentiality; and
  • Proper documentation of justifications for confidentiality so that unfair labor practice charges are more easily defended.