In July 2012 the National Labor Relations Board (“NLRB” or the “Board”) issued its decision in Banner Health System and James A. Navarro essentially instructing those of us who conduct workplace investigations to avoid our standard “please keep what we discussed confidential”  admonition to witnesses lest we find ourselves and our clients in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”).  We responded to that decision with a collective, “Huh?”.   The request for confidentiality is so routine that most of us say it without even thinking about it.  The need for confidentiality also seems incredibly obvious to those of us who are hired to come in and conduct independent  evaluations of sensitive workplace issues.  Our very appearance in the parking lot generally gets the rumor mill started, after all.

In Banner Health the Board  indicated that to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ rights to engaged in concerted activity.  The Board decided that the proffered justification, to protect the integrity of the investigation, was insufficient.  Once again, “Huh?”.

Rather, the employer  must first determine whether 1) any investigation witnesses needed protection; 2) evidence was in danger of being destroyed;  3) testimony was in danger of being fabricated; or 4) there was a need to prevent a cover-up.

The Office of the General Counsel of the NLRB issued an Advice Memorandum on January 29, 2013 on a case submitted for advice regarding whether an employer’s confidentiality rule unlawfully interferes with employees Section 7 rights by precluding them from disclosing information about ongoing investigations into employee misconduct.  The employer, Verso Paper, has a Code of Conduct which includes a provision which says:

Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

The General Counsel found this rule overbroad because an employer, in the eyes of the NLRB cannot have a blanket prohibition; rather it must assess the need for confidentiality on a case-by-case basis.

What does this mean for employers who conduct their own investigations in house and for those of us employers hire to do them in extraordinary cases?   See my prior post on when a company should hire and outside investigator HERE.

Although an Advice Memorandum does not have the authority of a Board decision or even a decision issued by a single Administrative Law Judge, we do need to pay attention to this one.  It is consistent with Banner Health and tells us not only that we need to do an individual assessment before issuing warnings in our pre-interview discussion with witnesses but also that a blanket confidentiality rule will not pass muster with the NLRB.