By Eric B. Meyer
HR heads are still spinning as they try to digest what the National Labor Relations Board has tried to accomplish this year.
The NLRB’s Acting General Counsel has issued confusing reports on social media. The Board has also attempted to create quickie union elections, and require companies to abide by a union-poster rule. Why, just a few weeks ago, the NLRB ruled that an “at will” provision in an employee handbook may violate the National Labor Relations Act. That one is still a head-scratcher for me.
But the National Labor Relations Board has really stepped in it again, dealing another crushing blow to HR. I think you’ll agree with me when you read on
“Unlawful” to ask employees to keep investigations confidential
On Monday, in this opinion, the Board deemed it unlawful for an HR Manager to request that employees not discuss company investigations into employee workplace complaints.
Let’s see how this may play out with a hypothetical:
Sally believes that Johnny is sexually harassing her. A nervous, demeaned Sally musters up her courage and goes to Human Resources to complain. After interviewing Sally, HR then speaks with Johnny to get his side of the story.
Upon concluding its interview with Johnny, HR advises Johnny not to discuss the substance of his interview or the investigation generally with anyone.
Why do we keep them confidential?
Why does HR do this? Because, HR wants to keep the investigation confidential for several reasons:
- Confidentiality encourages victims, like Sally, to come forward;
- Confidentiality encourages witnesses to cooperate and be forthright;
- Confidentiality helps ensure that rumors are not created and spread;
- Confidentiality keeps HR focused on the task at hand: investigating and resolving complaints of discrimination/harassment;
How the NLRB doesn’t grasp this is beyond me.
Instead, the Board concluded in this latest opinion above that an employer’s concerns with protecting the integrity of workplace investigations is insufficient to outweigh employees’ Section 7 rights. (Section 7 rights are those to engage in “concerted activities” for the purpose of collective bargaining or other “mutual aid or protection”).
The NLRB’s heightened standard
To avoid a practice that has a “reasonable tendency to coerce employees,” even without a direct or specific threat of disciplinary action, in the NLRB’s opinion (as it was back in this February decision), when requesting that a participating employee respect the confidentiality of an investigation, the employer must first determine whether:
- Witnesses need protection;
- Evidence is in danger of being destroyed;
- Testimony is in danger of being fabricated; or,
- There is a need to prevent a cover-up.
Think this heightened standard doesn’t affect you? Think again. Remember, the National Labor Relations Act governs just about every private work-setting, unionized or not.
Will a court actually uphold this ruling?
Were a court to uphold the NLRB’s decision, undoubtedly, companies may find themselves hamstrung to properly investigate and address allegations of behavior that violates a non-harassment policy. That means more lawsuits.
Further, fewer victims would complain and harasser behavior may go unchecked. This could expose the victim to further inappropriate behavior and also result in other new victims being forced to endure similar discrimination and unlawful harassment in the workplace. And more lawsuits.
Good luck with your next workplace investigation.
Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at firstname.lastname@example.org .