Provided by: Judge Ruth B. Kraft

       The National Labor Relations Board has recently issued written guidance on how employee confidentiality mandates applicable to workplace investigations must be structured. Last year, in the Banner Health System case, the Board held an employer violated the National Labor Relations Act by instructing employees not to discuss complaints made to the employer with co-workers while an investigation was pending. The Board signaled that absolute confidentiality requirements would violate the right of employees to engage in protected concerted action.

                The Board evaluated a company rule which read as follows: “V… has a compelling interest in protecting the integrity of its investigations. In every investigation, V…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. To assist V… in achieving these objective, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

                The NLRB held that the rule was unlawfully overbroad and recommended the issuance of a complaint against the company, absent a settlement. It found the provision to be a “blanket rule” rather than a rule based on a case-by-case determination of the need for confidentiality. The NLRB announced that an employer has the burden to show in each case that it has a legitimate and substantial business justification for confidentiality which will outweigh the interference with the employees’ rights to collective action. Citing Banner Health, it appears that the circumstances under which an employer may require strict confidentiality are those in which:

Witnesses are in need of 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.

Employers need to review their handbooks to insure that the language is consistent with the objectives of protecting the integrity of its investigations while also protecting the right to collective action. For certain, absolute restrictions will not pass muster. I now write into every employee manual language to the effect that nothing therein will constitute a bar to collective action and state that the employer will attempt, but does not guarantee, strict confidentiality.

This detracts from the employer’s mission, once a complaint has been made, of conducting a complete investigation. Ironically, if it is unable to do so, the employer may face the Catch 22 of exposure under Title VII of the Civil Rights Law as well as state/local human rights laws. Employers should make, and document, individualized assessments in each case and to memorialize its rationale for decisionmaking in the event that it is later challenged. Furthermore, employers should not “go it alone”. Consultation with a knowledgeable employment attorney and human resources professionals are essential to navigating the minefield.

Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.

CONFIDENTIALITY REQUIREMENTS