This Wisdom of the Crowd, compiled from questions and responses posted on the Employment & Labor Law eGroup,* addresses how companies should respond to he NLRB's New Banner Health Decision on confidentiality in investigations.
*(Permission was received from the ACC members quoted below prior to publishing their eGroup Comments in this Wisdom of the Crowd resource.)
During the September 2 2015 ELLC monthly call, Greg Watchman with Freddie Mac posed the following question: "What steps are employers taking to comply with the NLRB's pronouncement in Banner Health that requiring employees to maintain confidentiality of investigations almost never is justified as a limitation on Section 7 rights?" He started by noting that in 2012 the NLRB ruled in the first Banner Health decision that a blanket prohibition on discussing investigations is not lawful; instead, a case-by-case analysis has to be conducted to determine whether the requirement of confidentiality is justified. That decision, however, was invalidated when the Supreme Court (in Noel Canning) ruled that recess appointments to the NLRB were improper and invalidated all decisions made by the NLRB during the relevant period.
As a result, the case recently came back before the NLRB for review again. This time, the NLRB took a more challenging position and concluded that the employer has to show "that it has a legitimate and substantial business justification that outweighs employees' Section 7 rights." An employer may be required to show, for example, that witnesses need 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. Mr. Watchman asked for comments regarding how companies are addressing the restriction.
Response #1 during the Committee Call: One participant suggested changing training materials and investigation handbooks to state that employees should be "asked" to keep the discussions confidential in order to protect the spirit of the investigation. It was noted that employees who will not maintain confidentiality under those circumstances probably would not keep the information confidential anyway. A discussion ensued regarding whether such a "suggestion" still goes too far, and it was noted that in a very recent decision involving Boeing, the NLRB found a violation even though Boeing had changed its handbook to state that it "recommended" that employees refrain from discussing HR investigations.
Response #2 during the Committee Call: Another participant said that his company developed a form that requires the HR investigator to evaluate the need for confidentiality, using the Banner Health standards as a checklist. There was additional discussion regarding whether the recent Boeing decision complicates this approach.
Finally, it was noted that the NLRB suggested that it almost never is permissible to ask employees to maintain confidentiality after an investigation has been concluded.
Wisdom of the Crowd:
Response #1: Sadly if we quietly and blindly allow the NLRB to make these outrageous decisions, corporations might as well give up all autonomy! The NLRB is more extreme than most unions. Not sure how free enterprise and business can continue without NLRB interference if companies continue to fold and accept these outrageous commands.1
Response #2: In the recent Boeing decision, the Board held that written notice to an employee/witness stating that the Company "requested" confidentiality was tantamount to an instruction because of the form and the context. The Board found that an average employee would interpret the "request" as an instruction. Assuming that the general rule of the Banner Health case remains in effect and requiring confidentiality is prohibited, the question becomes where the Board will draw the line between a permitted suggestion/request and a prohibited order/instruction.
The next step down the ladder may be to state to an employee/witness that the Company "would appreciate it" if the employee would maintain the confidence of the investigation, and perhaps explaining why maintaining confidentiality is important to the process. Make it clear that compliance is not required, but the Company thinks it's a good idea. Will we have to expressly state that maintenance of confidentiality is not required?
The other side of the coin is what the circumstances will be were there is such an immediate risk to the integrity of an investigation that a confidentiality order will be permitted. What must an employer show to justify confidentiality? Based on the Banner Health decision, it would seem that no employer can ever be confident (before the litigation) that a confidentiality order is safe.2
Response #3: After Banner, perhaps the best approach is to refrain from requiring or requesting confidentiality but instead remind the interviewee that the company may discipline or discharge employees for (1) witness tampering/tainting, (2) altering or destroying evidence, (3) lying or conspiring to fabricate evidence, or (4) engaging in any other behavior that constitutes or is part of a cover-up in the course of the investigation. That way, the company is not directly preventing Section 7 communications between employees, but instead is taking action based upon the conduct that the confidentiality requirement has traditionally been imposed to prevent.3