In 2015, the Obama-era NNRB reversed a well-lit precedent for confidentiality in work investigations at Banner Estrella Medical Center. In that decision, the National Labor Relations Board (NLRB) asked employers to decide, on a case-by-case basis, whether the imposition of confidentiality during a particular workplace investigation unfairly violated workers` legal rights under the National Labor Relations Act (NLRA) to discuss the terms of their employment. After confirmation that the employer does not tolerate retaliation, the examiner should, during the course of the investigation, point out to each witness that the employer has assured that he will not tolerate reprisals. A witness who believes that the employer will not tolerate reprisals will be less concerned with confidentiality and will instead speak freely to the investigator. Confidentiality issues usually arise when a witness demands confidentiality. For other reasons, the employer or examiner finds that confidentiality is necessary. The proper handling of confidentiality issues is an important part of a successful investigation. For example, in the current circumstances, the employer or auditor may see confidentiality: employers should immediately review their manuals and other employment policies with respect to workplace surveys. The NLRB stated that the employers` privacy policy in investigations would only be legitimate in the context of an open investigation.
In addition, employer policies can only require the confidentiality of interested parties and not prohibit employees from talking about the incidents on which the investigation is based. On December 17, 2019, the NRB issued an important opinion on employer rules that impose employee confidentiality during work investigations, as reported in the Proskauers Labor Relations Update blog. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB nr. 144 (2019). First, conducting an investigation sometimes requires you to divide information that directly or indirectly divides the source. For example, if you are examining whether a superior used a racist slur during a one-on-one meeting with an employee, it may be impossible to thoroughly investigate the allegation without revealing the identity of the employee to the supervisor. The supervisory authority may not be able to fully respond to the allegation without knowing all the details. The National Labor Relations Board has just decided that employers can now demand the confidentiality of workers involved in open work investigations. It is important that yesterday`s decision at Apogee Retail LLC resolve the conflicting orders of the Board of Directors and the Equal Employment Opportunity Commission regarding the confidentiality of investigations that have plagued employers for years.
The SEC accused KBR, Inc., a Houston-based construction, engineering and technology company, of violating Rule 21F-17 for using restrictive language in confidentiality agreements related to its internal investigations. As part of its compliance program, KBR has regularly investigated complaints about the illegal or contrary conduct of its staff. At the beginning of an internal investigation interview, KBR investigators asked witnesses to sign a confidentiality statement in which staff members agreed to be prohibited from discussing with others the details of the interview or investigation without prior authorization from the legal department. The confidentiality statement also stated that unauthorized disclosure could end to warrant disciplinary action, including termination.
