Disciplinary and Harassment Investigations

There are various cases that have set forth these legal requirements related to confidentiality directives. In a National Labor Relations Board (“NLRB”) decision, the NLRB found that a private employer violates the National Labor Relations Act (“NLRA”) by asking an employee who was the subject of an internal investigation and witnesses to refrain from discussing the matter while the employer conducted the investigation. 71 The employer, Boeing Company, provided notice to all employees who were interviewed as part of an internal investigation by human resources, that the employees were “directed not to discuss this case with any Boeing employee other than the company employees who are investigating this issue or your union representative, if applicable. Doing so could impede the investigation and/or divulge confidential information to other employees.” Boeing argued the confidentiality requirement in all investigations was lawful based on legitimate business considerations, including protecting witnesses from retaliation or harassment, and preventing rumors from being spread. The NLRB disagreed, ruling that the blanket policy infringed on the employees’ statutory rights to discuss among themselves the terms and conditions of their employment. It noted that, while an employer may require confidentiality in certain limited circumstances, even when those limited circumstances apply, the employer must minimize the impact of such a requirement on the rights of employees to engage in concerted activity. By having a blanket policy applied to all investigations, Boeing did not consider on a case-by-case basis whether the particular circumstances of that investigation justified the confidentiality directive and was designed to prevent legitimate concerns of witness harassment or intimidation or the destruction of evidence or other misconduct. Boeing updated its confidentiality notice to “recommend” that employees not share information instead of “requiring” it. The NLRB found, however, that this was a difference with no meaning. The test is not whether the language sounds permissive or not, but rather what the likely effects will be on employees. Given the totality of the circumstances here, the NLRB agreed that even though the language was a “recommendation,” employees would likely still believe they could not speak about the investigation and could not defy Boeing’s recommendation. The case-by-case need for specific facts to support an instruction not to discuss the investigation is based upon the National Labor Relations Board (NLRB) Decision Banner Health System 72 and a PERB decision subsequent to Banner , Perez v. Los Angeles Community College District . 73 In Banner , 74 the NLRB found that a private employer violated the National Labor Relations Act by asking an employee who was the subject of an internal investigation to refrain from discussing the matter while the employer conducted the investigation. 75 The employer, Banner Health System, provided its human resources employees with an interview form to use when interviewing employees as part of an internal investigation. One of the bullet points under "Introduction for all interviews" noted that employees should be told not to discuss ongoing investigations. Although the form was never provided to employees, one human resources manager testified that she frequently, but not always, instructed employees not to discuss the investigation.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 42