At our 21st annual HR Law & Solutions seminar in March, I presented "Best Practices for Handling Workplace Investigations.” In the presentation, I mentioned that in July 2012, the National Labor Relations Board (NLRB) held that a blanket policy requiring confidentiality during all internal workplace investigations violates employees' concerted activity rights under Section 7 of the National Labor Relations Act (NLRA).
Earlier this month, the NLRB released an Advice Memorandum (click here to download) that provides additional clarification on its position regarding confidentiality in workplace investigations. It is helpful to review this NLRB guidance, because it gives a peek at how such a confidentiality policy can be revised to be in compliance with Section 7 of the NLRA. Keep in mind that the NLRB does not prohibit confidentiality in workplace investigations, but rather prohibits blanket confidentiality requirements.
What is the best practice for employers?
I recommend that employers review their existing policies and practices, and modify policy language, as appropriate, to comply with the NLRB guidance. Employers should also implement a practice of documenting, on a case-by-case basis, the reasons for deciding to instruct witnesses to keep an investigation confidential.
This is just another example of the ever-changing world of employment law. Employers, and even regulators, are finding that strategies widely believed to be "best practices" may now run afoul of either new privacy laws or new interpretations of long-existing laws, such as Section 7 of the NLRA. Stay tuned!