NLRB Eases Restrictions on Workplace Investigations
Author: Michael C. Jacobson, XpertHR Legal Editor
Employers may lawfully prohibit employee discussion of ongoing workplace investigations so long as they use appropriate language in an investigation acknowledgment policy, according to the National Labor Relations Board (NLRB).
In an Advice Memorandum issued on April 16, 2013, stemming from the Verso Paper case (January 29, 2013), the NLRB ruled that if employers include the following language in their workplace investigations policies, they will be in compliance with the National Labor Relations Act (NLRA):
"[Employer] may decide in some circumstances that in order to achieve [the objective of lawful and effective workplace investigations], we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we [the employees] do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."
This represents a big victory for employers, given the NLRB's controversial decision in Banner Health Med. Ctr., +2012 NLRB Lexis 466 (N.L.R.B. July 30, 2012). In that case, the NLRB ruled that prohibiting employee discussion of ongoing workplace investigations would violate §8(a)(1) and §7 of the National Labor Relations Act (NLRA). This new case not only chips away at that restriction, but also provides employers with sample language to use in their workplace investigations policies, a rare example of clarity from the NLRB.
Further, the NLRB drew a distinction between Verso Paper and Banner Health System (BHS) in that the BHS case involved a blanket restriction on discussion of any ongoing internal investigations, whereas the suggested policy language above provides employers with the discretion to require confidentiality in certain situations.
Employers should require confidentiality whenever they determine that discussion of an ongoing investigation could undermine its integrity. Thus, if employers use the aforementioned language in their workplace investigation policies, they will presumably be shielded from any claims of NLRA violations when they require confidentiality.
Additional Resources
How to Conduct an Internal Investigation
Investigate a Claim of Harassment
HR Guide to National Labor Relations Board (NLRB) Organization and Procedure - Chart