Wednesday, August 1, 2012

Asking Employee Not to Discuss Ongoing Investigation is Unlawful

Sometimes, one just has to wonder what the National Labor Relations Board was thinking when it decided a particular case.  This is one of those times.

Anyone familiar with workplace investigations knows that it is a standard practice for the investigator to tell employees that they should not discuss the details of the investigation with co-workers.  Not only does the admonition help ensure that the investigation can proceed as smoothly and fairly as possible, but it also reinforces the fact that some aspects of an investigation truly must be kept confidential for a variety of reasons.  In fact, not taking steps to protect privacy and confidentiality can expose an employer to all manner of legal liability.

This week, however, the NLRB ruled (decision here) that an employer violated the National Labor Relations Act by asking an employee not to discuss an ongoing investigation of misconduct with other employees.  Although an administrative law judge previously had determined that the employer did nothing wrong because it was simply trying to protect the integrity of the investigation, the Board saw things differently.  It ruled that employees have a right to discuss workplace issues and that the employer had not proven any legitimate business justification that outweighed that right.  Specifically, the NLRB noted that the employer failed to show that:
  • witnesses might need protection;
  • evidence might be in danger of destruction;
  • testimony might be in danger of fabrication; and
  • there might a need to prevent a cover-up.
Therefore, the company’s request for confidentiality was unlawful.  Notably, the NLRB specifically found it irrelevant that the company’s request did not contain any direct or implicit threat of discipline in the event that the employee did talk with others about the investigation.  Merely making the request for confidentiality was enough to constitute unlawful coercion.


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