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NLRB Bars Witness Confidentiality Obligation During Ongoing Investigations

    Client Alerts
  • August 10, 2012

When employers conduct internal investigations of possible misconduct, human resource professionals routinely advise participating witness of the need to keep the contents of their discussions confidential pending completion of the investigation. These instructions are typically intended to preserve the integrity of the investigation by allowing interviews of other witnesses before they have been tipped off as to the purpose of the investigation. Last week, the National Labor Relations Board (NLRB) called into question employers' ability to apply blanket confidentiality requirements to such internal investigations.

In Banner Health Systems, the employer's human resources consultant routinely told employees who made internal complaints not to discuss the matter with co-workers while the investigation was ongoing. The NLRB concluded in a 2-1 vote that this instruction constituted an unfair labor practice, because it interfered with the right of employees to engage in concerted activity with regard to terms and conditions of employment. The Board conceded that while general confidentiality requirements are prohibited, employers could justify such instructions in individual cases where they can demonstrate an actual threat to the integrity of the investigation.

As the following article illustrates, this is the latest in a string of NLRB decisions that call into question the legality of long-standing human resource practices in non-union work environments. Federal courts may disagree with the NLRB's conclusions that such practices actually threaten employee labor rights. However, employers conducting internal investigations may want to document the business justification for confidentiality instructions provided to witnesses in the event that this leads to accusations of unfair labor practices.