Practical Pointers Following Recent Decision On Investigation Confidentiality

Wednesday, September 26, 2012 - 16:43
Ellen Rosen Rogoff

Ellen Rosen Rogoff

Most employers require witnesses and other participants in investigations into employee misconduct to maintain confidentiality, particularly for investigations involving allegations of harassment or discrimination. According to a recent decision by the National Labor Relations Board (NLRB), such confidentiality mandates may run afoul of the National Labor Relations Act (the Act). Notably, the Act applies to most private sector employers, regardless of whether they currently have a unionized workforce.

Recently, the NLRB in Banner Health Systems d/b/a Banner Estrella Medical Center and James A. Navarro, 358 NLRB No. 93 (July 30, 2012), decided that an employer could not have a general policy prohibiting employees from discussing ongoing employment investigations or other employment information without violating Section 7 of the Act (which deals with “protected concerted activity” by employees). Mr. Navarro was a hospital technician who refused his supervisor’s instructions regarding sterilizing equipment and, as a result, was subjected to disciplinary “coaching.” During an investigation of the incident, the hospital’s human relations consultant told Mr. Navarro not to discuss the matter with co-workers. The hospital also had established written confidentiality and interview procedures prohibiting employees from discussing investigations or private employee information (such as salary information). The NLRB ruled that these general confidentiality policies violated the Act. It explained that an employer’s “generalized concern with protecting the integrity of its investigation” was insufficient to override the employees’ protected right to discuss the terms and conditions of their employment.

While this decision ultimately may be modified or reversed on appeal, for now it is causing uncertainty for many employers who have well-developed confidentiality policies relating to all employee investigations. The NLRB did provide some examples of situations that could require employee confidentiality during an on-going investigation, such as protection of a witness, the need to protect evidence from destruction, or the prevention of fabricated testimony or a cover-up. However, it is clear that the need for confidentiality will have to be evaluated (and, if necessary, defended) on a case-by-case basis.

The following tips are offered to assist employers in reviewing their current policies and practices in light of this recent development.

  1. Require Confidentiality Where Necessary and Appropriate. Many employer policies require confidentiality without a time limit or with respect to any and all matters relating to the investigation. Rather than such a blanket policy, consider modifying the policy to read that confidentiality will be required where necessary and appropriate. Then determine the specific confidentiality requirements appropriate to each investigation as each case arises. For example, some investigations only may require confidentiality until the investigation concludes. Or stricter confidentiality may be required for executives not covered by the Act than for those employees who would fall within the Act’s protections.  
  1. Tailor Confidentiality to the Specific Investigation. Consider the specific nature of each investigation to develop a basis for and restrictions on confidentiality obligations. Based on the Navarro decision, legitimate bases for requiring confidentiality may include: (a) a legitimate need to prevent destruction of notes or documents; (b) a desire to obtain everyone’s best individual recollection rather than a “group recollection” after discussion (which may be less accurate); or (c) the protection of the accuser or the alleged wrongdoer. For example, an investigation into allegedly harassing statements made during a department meeting may require co-workers to keep their statements to investigators confidential to avoid skewing the recollections of others, but only until the investigation concludes.
  1. Communicate to Witnesses. Communicate to witnesses at the outset of each interview why confidentiality is necessary, the duration of the confidentiality obligation, and any other limitations.
  1. Document the Reasons for Confidentiality. A brief discussion of confidentiality issues should be a part of the documentation of any employment-related investigation. Notes or memoranda should include both the specific reasons for the confidentiality restrictions selected and any discussions with witnesses regarding the confidentiality of the matter.

The primary takeaway from the NRLB’s recent decision is that businesses should give more thought to confidentiality requirements, as opposed to adopting a one-size-fits-all, blanket approach. Although Navarro ultimately may be seen as an outlier decision rather than the start of a new trend, businesses should consider reviewing their current policies and procedures to determine whether a more tailored approach to confidentiality is appropriate for particular matters.

Ellen Rosen Rogoff is a Partner in the Philadelphia, PA office of Stradley Ronon Stevens & Young, LLP. She practices in the areas of employment law and complex commercial litigation.

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