Confidential investigations may violate federal labor law

When confronted with complaints of sexual harassment, safety violations or other workplace problems, a good employer will investigate immediately.

Often, employers will ask everyone involved for confidentiality when conducting an internal investigation. The reason is to protect employees, make it easier to get at the truth, and avoid spreading allegations that may prove to be unfounded.

However, a blanket confidentiality policy could land an employer in hot water with the National Labor Relations Board.

In a recent case, a hospital technician in Arizona claimed that she was retaliated against after she complained of unsafe working conditions. Before human resources officials questioned her, they made her agree not to discuss the matter with co-workers while the investigation was pending. The hospital apparently followed this same practice whenever it investigated an internal complaint.

The technician argued that the confidentiality agreement violated federal labor law, because it could lead employees to believe they were being prohibited from engaging in their right to organize and discuss working conditions.

The NLRB agreed, ruling that a confidentially requirement like this one illegally “chilled” employees’ right to communicate with each other.

The Board added that a confidentiality requirement is acceptable only if an employer has a “legitimate business justification” for it. For instance, confidentiality may be required to protect a witness (such as the identity of an employee who files a sexual harassment complaint), or to prevent the destruction of evidence or a cover-up.

But a general concern with protecting the “integrity” of an investigation isn’t enough, the NLRB said.

Of course, the line isn’t always clear, and this decision may make it harder for employers to balance employees’ rights with an effective investigation in some cases.

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