Alert: Be careful when asking an employee to keep confidential the details of a workplace investigation you’re conducting. A misstep could put your company in hot water with the National Labor Relations Board.
That was underscored in a recent case in which a manager was investigating a charge of misconduct against an employee.
In the course of the investigation, the manager asked the employee to refrain from discussing the details with other employees.
A reasonable enough request, right? Not according to the NLRB.
By a majority vote, the board labeled the request a so-called Section 7 violation, named for part of the federal National Labor Relations Act.
Section 7 states, in part, that some confidentiality requests can violate an employee’s right to engage in “protected concerted activity.”
The section is usually associated with union organizing, but the case before the board didn’t involve union activity, and in fact, no employee of the company was a union member.
When can you request it?
You may be asking, “Then, can I ever request confidentiality?”
In its ruling, the board laid out the circumstances under which you or HR might legally ask an employee to refrain from going public. First, the board wrote, there can be no blanket ruling; every instance must be decided on a case-by-case basis.
The most defensible reasons listed by the board could be when:
- a witness needs protection against harm or retaliation
- there’s a clear possibility that evidence might be destroyed, or
- there’s a clear possibility that testimony might be fabricated.
Cite: Banner Health System, Case 28–CA–023438.