by Chris Chrisbens
Banner Health: Blanket Confidentiality Violates NLRA Section 7
The National Labor Relations Board (NLRB) in July 2012 held that a blanket approach requiring confidentiality during all workplace investigations violates employees’ concerted activity rights under Section 7 of the National Labor Relations Act (NLRA). Banner Health Systems and James A. Navarro. In Banner,the NLRB said that at the outset of each investigation employers must carefully balance whether a confidentiality requirement truly is warranted under the specific circumstances, or whether it would unfairly impinge on employees Section 7 rights. Only where a need for confidentiality outweighs Section 7 rights can confidentiality be required. Regrettably, the NLRB’s analysis at least implied that the relevant factors weighing in favor of confidentiality are 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. The NLRB provided no guidance as to whether or not any additional factors, or what other factors, might be important in justifying a confidentiality instruction.
In particular, the NLRB in Banner did not discuss overarching factors which generally warrant confidentiality in most workplace investigations, including encouraging witness and complainant participation.
American Baptist: Witness Statements Not Automatically Confidential
The NLRB recently took another step undermining investigation confidentiality by overruling a 34-year-old bright-line exception that witness statements generated during an employer’s investigation of employee misconduct need not be disclosed to the employee’s union. American Baptist Homes and Service Employees International Union. The NLRB reasoned that witness statements are not fundamentally different from witness identities and job titles which must be disclosed, absent the employer’s proof of a countervailing need for confidentiality, pursuant to its general obligation to provide unions with relevant information necessary to perform union duties. NLRB rejected the bright line in favor of the unpredictable balancing test applicable to witness identities and job titles: whether substantial employer interests concerning confidentiality, witness coercion, harassment or
retaliation outweigh the union’s need for the information in the particular case. Significantly, an employer’s policy and practice of keeping such investigation information confidential is not, alone, a substantial confidentiality interest.
In contrast to Banner, the Board expressly rejected the argument that the witness statement exception is consistent with EEOC Guidelines and “protects the integrity of the arbitration process, protects employee witnesses who participate in workplace investigations from coercion and intimidation, and enables employers to conduct effective investigations into workplace misconduct.” Likewise, although it acknowledged “the risk that employers or unions will intimidate or harass those who have given statements, or that witnesses will be reluctant to give statements for fear of disclosure,” the Board was not persuaded that a balancing test enhances those risks or discounts the EEOC Guidelines. The “balancing test is designed to take into account any legitimate and substantial confidentiality interest that an employer may have, which would include concerns about witness intimidation or compliance with EEO guidelines.”
It seems to this investigator, however, that the NLRB has grossly discounted the chilling effect a lack of confidentiality, or at least uncertainty about confidentiality, has on employees, both those who may be complainants and those who may have valuable information necessary to an investigation. Employee witnesses and even complainants are often genuinely concerned about the effect a lack of
confidentiality may have on them and are inclined to selectively disclose information based on such concerns. Moreover, witness statements are fundamentally different than identity and job title because they can reveal exactly what a witness has said, providing fodder for retaliation and intimidation, rather than just the fact that the person was a witness who provided unspecified information.
Also significant to the NLRB’s holding on the facts of the American Baptist case was that only two
of three investigation witnesses were asked to provide investigation statements and specifically told that their statements would be kept confidential. A third witness volunteered her statements and was never specifically assured of confidentiality, although she relied on her employer’s investigation confidentiality policy. Because the third witness had not been specifically assured of confidentiality, NLRB ruled that her statements did not qualify as “witness statements” subject to the disclosure exception it prospectively overruled.
Employers in Double-Bind?
These two rulings appear to put employers in a double-bind. At the outset it is not often clear in what direction a workplace investigation will lead; what might happen during (or after) an investigation to trigger confidentiality concerns or retaliation; or on what particular grounds confidentiality might truly be necessary in retrospect. That is at least in part exactly why a blanket approach to investigation confidentiality is important, necessary and has been the preferred practice encouraged by the EEOC’s Guidelines. Moreover, an employer’s general policy of investigation confidentiality supports an employer’s complaint procedures by encouraging timely, legitimate complaints and fosters its ability to fulfill the duty to promptly investigate and address EEO and other legal issues.
To the contrary, the Banner and American Baptist rulings suggest that at the outset of an investigation, employers must be able to particularly identify specific factors warranting confidentiality before it can assure complainants and witnesses that the investigation and their statements will be kept as confidential as practicable. Without that information the Banner ruling suggests that you cannot require investigation confidentiality without possibly impinging upon concerted activity rights. And, according to American Baptist, without such an assurance of confidentiality prior to giving the statement, it may not qualify as a “witness statement” subject to protection from union disclosure. However, it is not always, or often, possible at the outset of the investigation to specifically identify such factors that could justify confidentiality. Double-bind. The mere possibility of confidentiality may be little consolation to employees genuinely concerned about confidentiality and reluctant to participate. But, that appears to be the protection the NLRB now sees fit to afford employee statements.
So, What Now?
Certainly these rulings require employers to proceed cautiously and pay particular attention to and document confidentiality concerns and issues. You may want to think about taking a number of steps to make a confidentiality requirement during an investigation more likely to pass NLRB muster, including:
- Limiting confidentiality instructions to investigations of complaints and issues that implicate or are likely to implicate EEO or other legal issues or when investigation integrity is a particular concern;
- Specifically considering and documenting why confidentiality is necessary to a particular investigation;
- Asking complainants and witnesses to share any fact-based concerns regarding confidentiality, intimidation, retaliation or other concerns that could warrant confidentiality. It is at times the case employees have generalized fears not supported by facts so investigators must probe for facts that might support such a concern;
- Documenting and addressing instances of intimidation, harassment and other issues that might implicate and justify confidentiality concerns in future investigations;
- Tailoring the confidentiality requirement to the specific subject matter of the investigation and matters discussed in investigatory interviews and statements while the investigation is ongoing;
- Limiting the confidentiality instruction to employees who will or are likely to be interviewed during the investigation because they have personal knowledge of events or other directly relevant information;
- Clarifying that the employer cannot guarantee confidentiality but that it will maintain confidentiality as practicable under the circumstances and as permitted by law;
- Clarifying that the confidentiality restriction is not intended to prevent employees from addressing concerns with one another or with the employer; and
- Explaining to witnesses that the purpose of the confidentiality restriction is to:
- Preserve the integrity of the investigation process;
- Encourage employees to speak up when they have a problem and give them confidence that they may speak the truth;
- Uphold your anti-retaliation policy; and
- Allow you to conduct thorough and objective investigations which, in turn, allow you to effectively address employee complaints and concerns and resolve workplace conflict.
It also may be appropriate to forgo the threat of discipline for individuals who breach confidentiality.
Chris Chrisbens is the lead attorney for Holland & Hart’s Affirmative Action Planning and Office of Federal Contract Compliance Programs (OFCCP) service. He can be reached at email@example.com or 303-295-8193.