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Confidentiality in Workplace Investigations

January 13th, 2020

Recently, The National Labor Relations Board (NLRB) ruled that employers can require confidentiality from employees involved in a workplace investigation. This ruling overturned the previous, Obama-era ruling that stated employers were required to determine, on a case-by-case basis, whether or not demanding confidentiality infringed upon an employee’s statutory rights to discuss the terms and conditions of their employment.

Investigation Integrity

Despite the protection of employee rights that the Obama-era ruling intended, employers found over time that it became difficult to protect the reporting employee and other employees from retaliation. Furthermore, there were incompatibilities with other recommendations for blanket confidentiality policies that go into effect during workplace investigations.

Employee Rights

To come to the rules included in the new ruling, the NLRB analyzed workplace investigations against the criteria used in its recent Boeing Co decision where workplace rules fell under one of three categories:

  • Category 1: rules that the Board will designate as lawful to maintain because, when reasonably interpreted, they do not prohibit or interfere with the exercise of employee rights or the potential adverse impact on protected rights is outweighed by associated justifications;
  • Category 2: rules that warrant specialized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights and, if so, whether any adverse impact on NLRB protected conduct is outweighed by legitimate justifications; and
  • Category 3: rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRB rights is not outweighed by the justifications associated with the rule.

The NLRB determined that workplace investigations fall under category 1 and therefore, employers may require confidentiality from parties directly involved with an open workplace investigation. Employers should note, however, that they cannot require confidentiality from employees not involved in the investigation, and cannot prohibit any employee from discussing the events leading to the investigation at any time. The ruling does not allow employers to prohibit discussion of discipline or events that may result in discipline.

In fact, the actual ruling is fairly narrow – pertaining only to the investigation of incidents or interviews conducted during the investigation that pertain directly to it.

What Employers Need to Do

As an employer, now is the time to review your internal policies and rules. If you have an employee handbook (you should), review and edit as necessary. Ensuring that your internal policies align with this ruling and have clearly stated rules that make your expectations as a company clear is important. It should be noted that this ruling only allows the required confidentiality to exist while an investigation is open and ongoing, and your rules should apply as thus. If you’re not sure how to manage this portion of your employee experience, give us a call. As a PEO, we can help make it easy.