Investigations and the Confidentiality Directive Revisited
In a recent decision by the National Labor Relations Board (NLRB), the Board significantly impacted the manner in which HR investigations are conducted. It has become an accepted practice, and a part of most employment handbooks, to instruct individuals, who are part of an HR investigation, to maintain complete confidentiality regarding the investigation. In many instances, employers strongly emphasize that a breach of the investigation’s confidential nature could result in disciplinary action. In light of the NLRB’s decision in Banner Health System, employers should re-examine this protocol.
In Banner, the HR consultant testified that she routinely asked employees making a complaint not to discuss the matter with their coworkers while the investigation was ongoing. The NLRB found that such a practice had “a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights.” Section 7 protects the rights of both union and nonunion employees to engage in “concerted activities” for their mutual aid and protection, and includes discussions among employees concerning the terms and conditions of employment.
For a prohibition against the discussion of an ongoing investigation to survive NLRB scrutiny, the employer must show it has a “legitimate business justification that outweighs employees’ section 7 rights.” The NLRB stated that it is an employer’s burden to establish the legitimate business justification. Justification for a prohibition against discussion of an ongoing investigation can arise if it is determined that any investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.
As a result of the Banner Health System decision, HR professionals should immediately reevaluate the instructions that are given to parties involved in an investigation and update all written policies in light of Banner. Investigators who wish to rely on the “legitimate business justification” exception should understand that such a decision must be made on a case-by-case basis. As a consequence, there should be solid documented factual backup for that decision. One possible way to maintain the integrity and confidentiality of the investigation process is to obtain written request for confidentiality by all investigation participants. Care should be taken to assure that this is not forced on the investigation participant, but rather is provided to them as an option as part of the process.
Having conducted many investigations, I understand the necessity to get to the bottom line facts without having those facts tainted by rumor and innuendo. The key to any successful HR investigation is to document, document, and document. Jurors are far more sophisticated today when it comes to workplace rights. They expect employers, not only to follow up on a complaint, but to follow through. Those employers that fail to do so, do so at their own peril.
While Banner forces every HR department to reevaluate its policies and procedures, it does not create an insurmountable hurdle for the seasoned investigator. In some respects, it may ultimately benefit employers in that it will require them to be more deliberate in their explanation of the investigation process, provide another key piece of documentation to buttress the investigation and, through the use of a request for confidentiality, give employees what they really want during an investigation, which is confidentiality.