Whether you think the National Labor Relations Board is off its rocker or finally got things right with its latest workplace investigation confidentiality ruling depends upon the side of the employment relationship you’re on. Criticism has been streaming in from the management side ever since the NLRB decided on July 30 that a general rule requiring confidentiality during an internal investigation into an employee complaint constitutes an unfair labor practice.

Blanket Approach

The NLRB has condemned the “blanket approach” to requiring confidentiality during internal investigations, saying that an employer must consider each investigation individually to decide whether confidentiality is required for one or more of the following reasons:

• Protection of witnesses
• avoiding destruction of evidence
• testimony is in danger of being fabricated
• preventing a cover-up

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“The NLRB is off its rocker,” says Phillip Wilson, author and President of the Labor Relations Institute. “In their zeal to promote unionization the NLRB is making decisions that fly in the face of both years of NLRB precedent and the realities of the modern workplace. This case is just one more example of that and it is very likely to face a legal challenge,” he says.

“The NLRB case is frustrating to employers because it conflicts with other legal obligations for companies,” says Wilson. “For example, under Title VII companies must complete thorough investigations and protect witnesses and complainants against retaliation. The NLRB case frustrates those requirements by telling employers that they cannot ask witnesses to keep a pending investigation confidential.”

Compromised Investigations

It’s considered a best practice to request employees involved in an investigation to refrain from discussing the investigation or interview with others, says Jarod Stockdale, Certified Forensic Interviewer, CPP, and National Security Director for a large national company.

“This is done as a preventative measure to limit contamination of evidence as people talk and rumors are interpreted as facts … Especially in a Title VII case of discrimination or harassment, this new ruling can and will have a negative effect on the ability of interviewers and investigators to determine the authenticity of details of a complaint when the information can shared freely between employees,” says Stockdale.

“How can an investigator properly authenticate or prove false any allegation where the details have been discussed among a group?” he asks. “It opens the door to creating opportunistic ‘me too’ claims and will create an undue burden on both private business and public agencies,” he says.

Employee Gag Order

But information sharing isn't necessarily a bad thing, even in the context of an investigation, says Donna Ballman, employee-side employment attorney and author of Stand up for Yourself Without Getting Fired. “I've seen these kinds of confidentiality provisions used as a weapon against employees. They complain about, say, sexual harassment and suddenly are banned from discussing with female coworkers that their boss is a harasser. They can be, and frequently are, fired if the employer claims they think the employee violated confidentiality,” she says.

“The National Labor Relations Act says employees are allowed to discuss working conditions, which would include being able to compare notes on the office letch, dangerous working conditions, and illegal practices. It's about time the practice of putting a gag order on employees was shut down for good,” says Ballman, noting that the ban isn’t across the board, and doesn’t apply to supervisors or in cases where the employer can show a legitimate reason to keep things confidential.

What You Should Do

Wilson warns that despite the chance that the NLRB position may be overruled in time, companies still need to comply with the requirement now.

“In most cases companies do not need to change how they conduct internal investigations, although they should make sure to document early in the process any reasons they believe that justify confidentiality in the process,” says Wilson. “As the NLRB mentions, those reasons could include safety of the witnesses or the likelihood that lack of confidentiality could lead to destruction of evidence or severely impair the investigation. Once those reasons are documented you can probably defend a complaint based on this decision and certainly will have a strong argument in case you ever face a legal challenge. The fact is that the vast majority of investigations do require confidentiality - the key is to document that before you ask for it.”