On the basis of this framework, the board found that the confidentiality rules applicable to investigations limited to the duration of the investigation fall within category of Category 1 legislation, which does not require a balancing obligation between the employer and the worker. The Board of Directors found that employers` motivations for rules far outweigh the minor impact on workers` rights to discuss their own or the discipline of their colleagues. "While we are doing the rest of this investigation, please don`t talk to other employees about what we talked about today." Without the ability to require confidentiality, however, employers found that they were unable to guarantee the integrity of the investigation or to protect the reporting employee and other participants from reprisals. In addition, employers faced a serious dilemma because the NNRB guidelines were inconsistent with the current EEOC recommendation for general confidentiality rules that are necessary during workplace investigations. As a result, employers were forced to decide what regulatory provisions they would comply with and should expect possible legal consequences in the event of non-compliance. First, you should end any common practice of requesting employee confidentiality during an investigation. Check scripts and investigative policies, and make sure that each reviewer is trained not to give reflective privacy instructions. It is important to note that it was clear to the NRL that a general concern about the integrity of an investigation was not sufficient to justify a confidentiality requirement. Employers bear the burden of demonstrating objectively reasonable reasons to believe that confidentiality is necessary. Second, assess the circumstances of each investigation. Consider whether confidentiality is objectively necessary to prevent corruption of the investigation. Is there a risk for witnesses to destroy evidence or make up stories, or is there a risk of a cover-up if employees are not informed of confidentiality? Are there other reasons for requesting confidentiality in this specific investigation? If this is not the case, employees should not be told that they cannot discuss the investigation with co-workers.
In this case, the reasons for the confidentiality requirement should be recorded in the investigation information. In Banner Health System, 362 NLRB No. 137 (June 26, 2015), the NLRB reminded employers of the board`s long-standing position that "workers have the right to section 7 to discuss the discipline or ongoing investigations in which they or your employees are involved." Third, always start the investigation immediately and schedule, whenever possible, closely collaborative interviews, so that there is as little time as possible between the complaint, the investigation and the closing. Less time from start to finish reduces opportunities for stakeholders, including witnesses, to discuss topics with each other. Section 7 of the National Labor Relations Act (which applies to almost all unsupervised workers, not just those working in a union environment) provides that workers have the right to freely discuss working conditions as a legally protected and concerted activity. As a result, according to the NLRB, employers may ask workers not to discuss an ongoing investigation unless the employer has a "legitimate and substantial business justification" for requesting confidentiality over workers` rights under Section 7. However, in yesterday`s decision by Apogee Retail, a majority of the NLRB found that the previous board had unduly departed from its obligation to reconcile employers` business justifications with the adverse effects of workers` rights.