Bobbi K Dominick
Can You Require Employees to Keep An Investigation Confidential? Maybe.
So, from the time I began conducting workplace investigations over three decades ago, the prevailing best practice was that employers should do all that they could to keep a workplace investigation confidential. Confidentiality was viewed as a way to protect several very important interests: (1) keeping the complainant's information safe, so that speculation and gossip did not cause further harm while the investigation was ongoing; (2) protecting the employer's interest in finding the truth by preventing witnesses from comparing notes and possibly tainting their recollections, or worse, conspiring to tell false narratives; and (3) protecting the respondent's interests in not having a reputation tarnished before the facts are discovered. These were considered very important interests, and confidentiality during an investigation could protect these interests.
Employers enforced confidentiality by a number of measures: (1) policies that promised confidentiality; (2) policies that cautioned employees against sharing information about an investigation, and perhaps suggested discipline for those who violated the rules; (3) written cautions given to witnesses at the beginning of the investigation acknowledging the duty of confidentiality; (4) training employees and supervisors on the confidentiality requirement; (5) oral cautions given to the witness by a supervisor and/or the investigator at the beginning of each interview.
The standard was set. Enter the National Labor Relations Board. In a decision called the Banner decision, issued in 2017, the NLRB ruled that employer requirements of confidentiality during a workplace investigation conflicted with the employee's Section 7 rights under the National Labor Relations Act, the right of employees to free discussion of the working conditions within their workplaces. The NLRB said that in order to uphold a confidentiality rule, the employer would have to prove that the integrity of any particular investigation would be compromised if confidentiality were not required. This upended the best practices of requiring confidentiality in every circumstance. The employer had to weigh each investigation, and could not maintain a consistent practice in all investigations, but instead had to determine whether confidentiality was important in each situation. And how do you prove what MIGHT happen, the bad consequence, unless it does happen in a particular circumstance, in which case the damage you are trying to prevent is already done.
Of course those of us who regularly conduct workplace investigations, and those who work in human resources, understood the grave consequences that could result if confidentiality could not be required. This left employers in a quandary as to how and when they should demand confidentiality. Some employers continue to require it of everyone, some employers softened their admonitions to ask for, but not demand or require, confidentiality.
Well, now the NLRB has overruled the Banner decision in a new decision known as the Apogee decision. In this decision, the Board ruled that if an employer's policy of confidentiality is facially neutral, and requires confidentiality during the investigation, it will be upheld.
This means that employers can require confidentiality from all employees during the duration of an investigation. It also means that employers should make sure that the confidentiality policy and admonitions make it clear that confidentiality is required DURING the investigation, and not in perpetuity, because an overly broad rule may still be struck down. Still, this is welcome relief for those conducting investigations.