Legal View: National Labor Relations Board targets confidential investigations

Kimberly Atkins and Lisa Keen,
The Daily Record Newswire

Lawyers say they are not surprised by a recent National Labor Relations Board ruling that a company committed an unfair labor practice by instructing employees they could not discuss an internal investigation, but that does not mean they like the decision.

Some say it hamstrings the efforts of employers to conduct internal investigations about alleged misconduct ranging from sexual harassment to workplace safety violations, even when those investigations are required under state and federal laws.

Others say it is an example of the politicizing of the agency, leaving labor attorneys with uncertainty about how a panel under a different administration might rule.
But they also say the ruling is in line with the NLRB’s previous decisions and should be taken as a reminder to employers that employees have a right to talk among themselves.

Dahlia C. Rudavsky, an attorney at Messing, Rudavsky & Weliky in Boston who represents unions and employees, said the decision builds on well-established law that workers cannot be unreasonably restricted in speaking with one another about wages, hours, and the terms and conditions of employment — “and that includes matters under investigation.”

In Banner Health Systems and Navarro, the board held 2-1 that a company had violated the National Labor Relations Act by requesting confidentiality from all employees as a matter of course during internal investigations.

The case involved a technician at a Phoenix hospital who alleged retaliatory treatment after complaining of poor and unsafe working conditions. Before being questioned by human resources officials, the technician was asked not to discuss the matter with co-workers during the course of the investigation. The practice was followed whenever an employee made a complaint.

The worker later claimed that the confidentiality agreement violated the NLRA because it could reasonably lead employees to believe that they were prohibited from engaging in concerted activity.

The administrative law judge hearing the case found no violation of the act.

But the NLRB panel disagreed. Such confidentiality requirements, the board ruled, unlawfully chill employees’ rights under Section 7 of the act to communicate with co-workers about wages, hours, and other terms and conditions of employment.

A prohibition on discussing investigations is acceptable only if there is a “legitimate business justification” for the policy, and a “generalized concern with protecting the integrity” of an investigation is not sufficient to meet that threshold, the board held.

Instead, the burden rests with an employer to first determine and later be able to prove that the requested confidentiality is necessary for one of four reasons: to protect a witness, to stop evidence from being destroyed, to avert fabricated testimony, or to prevent a cover-up.

Alfred S. Gordon, a lawyer at Pyle, Rome, Ehrenberg in Boston whose work includes NLRB matters, said the ruling is in line with the board’s decisions over the years.
“Unless an employer has a particularized need to keep an investigation from being discussed in the workplace, employees have a right to discuss those matters for their mutual aid and protection,” he said. “And, frankly, whoever is in control of the board — whether a Democratic majority or a Republican majority — you can usually count on the board to find unlawful any rules that would prohibit employees from talking among themselves unless there was some major overriding concern.”

But Michael F. Kraemer, a management-side employment attorney at Hinckley, Allen & Snyder in Providence, R.I., called the decision “dreadful,” saying investigations and discipline should remain private.

“If somebody’s represented by a union, then of course the employee should be able to discuss the matter with a union rep — nobody would dispute that,” Kraemer said. “But this goes much further. And it’s a further example of the politicizing of the NLRB which has been going on since Reagan was president. It produces agency decisions based on which political party holds the presidency.”

The case also is an example of how difficult it has become for both union and management-side lawyers to offer advice “when the board is always flip-flopping,” he said. “As an attorney, you’d like to have some certainty and you really can’t. Under this board, the rule might be X, but under the next board, it’ll likely be the reverse of X.”

David B. Wilson, a labor attorney at Hirsch, Roberts, Weinstein in Boston, said the panel’s decision goes against a “best practice for employers,” which is to request that parties and witnesses to investigations maintain confidentiality.

“It even goes so far to say in dicta that an employer does not even need to threaten discipline for this to be a violation,” he said.

Wilson said he is advising his employer clients to consider revising any written policies that have a blanket requirement of confidentiality.

Some attorneys suggest that the NLRB ruling, combined with other recent actions by the board, demonstrates an aggressive enforcement policy against employers.
“The board is taking action in a different way than they have in the past,” said Martha J. Zackin, of counsel at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo in Boston.
Until now, Zackin said, requiring confidentiality from employees, whether by verbal request or written agreement, has been a basic tenet of internal investigations, protecting both the fact-finding ability of employers as well as the privacy of employees.

If employers must wait until they have evidence that one of the enumerated reasons for confidentiality is present, it may be too late, she said.

“I don’t think you can know before you start whether the integrity of the investigation can be maintained without confidentiality,” Zackin added. “When you interview two witnesses, and their stories are absolutely identical, then you know that they talked.”

But Donna M. Ballman, an employment attorney in Fort Lauderdale, Fla., and author of the upcoming book “Stand Up for Yourself Without Getting Fired,” said the ruling leaves plenty of room for protecting information that ought to remain secret.

For example, employers can ask for confidentiality if a sexual harassment complaint has been made and the complainant would be easily identifiable.

“That is a legitimate reason,” Ballman said. “But how does putting a gag order on someone who is complaining about working conditions help employers conduct an investigation?”

Stephen W. Lyman, who practices in Indianapolis, said the ruling places “a high burden on the employer to justify that confidentiality is required in each instance” and does not give employers enough guidance to determine how much evidence is enough to support the use of confidentiality pacts.

“My concern is, even if the employer is able to articulate one of the four reasons, the NLRB can still come back and say, ‘That wasn’t good enough,’” Lyman said. “It’s always a moving target.”


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