You read the blog title, slap your head and say, “Really?” Last week the NLRB came out with a decision that really has HR and employement attorneys rolling their eyes. In its Banner Health Systems decision, the Board ruled that employers (read: HR and outside investigators) who tell employees/witnesses to keep the nature of the investigation confidential must now be prepared to prove that the confidentiality restriction is necessary to further a legitimate business need. HELLO! What more legitimate business need can there be than
1. encouraging employees to come forward with a complaint,
2. protecting witnesses and employees from retaliation, and
3. helps maintain the integrity of the investigation (e.g., rumor mills, spoliation of evidence and on and on.)
On July 19, I delivered a session at The HR Star Conference rconference entitled The Top 10 Mistakes Investigators Make. One of the mistakes is not keeping things confidential. I did caution the audience that asking an employee or witness to keep the matter confidential could snag the ire of the NLRB but that investigators still have an obligation to manage the investigation and so long as the instruction on confidentiality is narrowly tailored – you may, might, hopefully be ok. My advice was timely, but where are we left now with this decision?
The Boards decision is not a total prohibition on asking for confidentiality. Just be prepared to establish that confidentiality is necessary to protect a witness, prevent the destruction of evidence, preserve testimony, prevent a coverup, or further another legitimate business interest.
(I am writing on an ipad in Barcelona so please forgive typos)