Thursday, April 25, 2013

NLRB Eases Up on Confidential Workplace Investigations . . . Sort Of

A few months ago, I blogged about the NLRB's opposition to confidentiality provisions in workplace investigation policies. Now, the NLRB has issued a new advice memorandum briefly addressing the issue.

The key takeaway here is that:
[T]he Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.
One nice thing about this memo is that it actually provides an example of what would be a lawful policy (in the NLRB's eyes). First, they ok'd the portion of the employer's policy providing that:
[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] 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.
The advice memo scrubs the remainder of the employer's policy because it included a blanket confidentiality provision under threat of termination. Instead, the memo says to try something like this:
[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
So, employers, there's your roadmap. Just one more thing . . . in my post linked above, I noted that the EEOC is also taking aim at confidential investigations. Does the NLRB's advice memo pass EEOC muster? I tell ya, nothin's ever easy.

See also: Jon Hyman's NLRB Offers Further Guidance on Confidential Workplace Investigations; and WinWinHr's Internal Investigations: NLRB Suggests Confidentiality Language.

Image: NLRB seal used in commentary on NLRB. Not official use.

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