By Jill Porcaro and Andrew Crane

As a well-intentioned employer, you know it is best to promptly investigate employee claims of workplace harassment  and other employee misconduct.  Due to the obvious sensitive nature of these types of investigations, you implement a policy prohibiting your employees from discussing the investigation with anyone other than the investigator.  You believe that your employees will feel more comfortable disclosing truthful information to the investigator knowing their confidences are assured.  Great policy, right?

  • Not exactly.  Now, more than ever, the National Labor Relations Board (the “Board”) is cracking down on blanket confidentiality policies that prohibit employees from discussing investigations of employee misconduct, including the right to discuss discipline or disciplinary investigations involving their fellow employees, on the grounds that these policies “chill” employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”).

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), an employer had a policy of prohibiting its employees who made complaints from discussing the matter with their coworkers while the investigation was ongoing.  The Board held that this rule violated the NLRA because an employer must justify a prohibition by showing a “legitimate business justification that outweighs employees’ Section 7 rights.”

Well then, I’ll just nicely suggest to my employees not discuss the details of any investigation.  That ought to solve the problem, right?

  • Again, not exactly.  In July 2013, the Board took the Banner decision a step farther when an administrative law judge found that even a policy that “recommended” — rather than required — its employees to refrain from discussing investigations still violated the NLRA.

So, as an employer, it looks like you’re stuck between a rock (wanting to keep workplace investigations private for legitimate reasons) and a hard place (the Board’s  prohibition on policies requiring confidentiality of workplace investigations into employee misconduct).

What’s it to California?  What makes this trend even more vexing for California employers is that–for once–California law is more permissible than the stance taken by the Board.  California courts tend to look favorably on employer confidentiality policies for workplace investigations.  For example, in the oft-cited workplace investigations case Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256, 265 (1998), the court highlighted the fact that the employer’s investigation policy was appropriate in part because the policy ensured confidentiality.

Workplace Solutions:  What is an employer to do?  One thing is clear: do not institute a blanket policy of confidentiality of workplace investigations, or else risk running afoul of the Board.  Even with “softening” language, a blanket policy covering all workplace investigations is almost certain to catch the Board’s wrath.

The better method is to justify the need and level of confidentiality on a case-by-case basis, as stated by the Board in Banner.  Although less cut and dry than a blanket policy, and more of a headache, evaluation on a case-by-case basis will help you satisfy the Board’s requirement of showing a “legitimate business justification.”

Facing a workplace investigation of employee misconduct?  Consult your attorney to devise the best strategy for finding a way out of from between a rock and a hard place.

Edited by Sophia Kwan