Confidentiality is important in workplace investigations. Confidentiality issues arise in three areas: (1) whether the results of the investigation—in particular the investigation report—will be disclosed to the parties; (2) whether witnesses will be promised confidentiality or anonymity, and (3) whether witnesses will be asked to keep their involvement in the investigation confidential.
Confidentiality of the Investigation Report
Generally, the actual investigation report should be provided by the investigator to the employer, and the employer should not provide the report to the complainant or respondent. Certainly I, as a trusted investigator and licensed attorney, will not disclose the report or other information about the investigation to anyone absent express direction of the client to do so. Workplace investigations conducted by licensed attorneys are subject to the attorney-client privilege and attorney work product doctrine of confidentiality. If litigation ensues, the employer—not the attorney—may choose to waive the confidentiality of the investigation report, thereby making even an attorney-investigator subject to subpoena to testify.
Confidentiality Promised to Witnesses
Often, witnesses—especially complainants—ask that their information be held in confidence and their identity be kept a secret. However, a workplace investigator should never promise a witness any degree of confidentiality or anonymity. Information should be treated on a need-to-know basis. Generally, it is hard to afford anonymity to the complainant while still affording the respondent due process.
Asking Witnesses for Confidentiality
A workplace investigator really does not want witnesses leaving the interview and immediately telling other witnesses what occurred behind the closed doors of the interview room. That has a great potential for tainting the effectiveness and credibility of the investigation. Additionally, employers typically want to tamp down the amount of chatter about pending investigations. Accordingly, employers usually want to direct their employees not to discuss the investigation or their pertinent information with other employees or persons outside the company. These are reasonable concerns.
The problem with instructing witnesses not to talk among themselves is what is referred to as the Banner decision. In 2015, the National Labor Relations Board (NLRB) issued a decision involving the Banner Estrella Medical Center. Banner had held that the National Labor Relations Act (NLRA) precluded employers—even non-unionized employers—from ordering employees not to discuss amongst themselves the circumstances underlying a workplace investigation or the way the investigation was being handled. This is because employees in even non-union settings have a right to act “in concert” with respect to the terms and conditions of their employment.
However, in a 3-1 decision December 16, 2019, the NLRB overturned the Banner decision in Apogee Retail LLC d/b/a/ Unique Thrift Store and Kathy Johnson, 368 NLRB No. 144. In Apogee, the majority of the NLRB ruled that employers do not violate the NLRA when they create facially neutral policies that require employees to maintain confidentiality during open workplace investigations. Instead, the NLRB in Apogee applied another decision called Boeing decided in 2017. The NLRB majority said that, under Boeing, while Apogee’s confidentiality rules may affect employees’ NLRA Section 7 rights to act in concert, the adverse impact involved is “comparatively slight” and “outweighed by the substantial and important justifications associated with Apogee’s maintenance of the confidentiality rules.” In this author’s opinion, Apogee is a good, common-sense reconciliation of two competing public policies in the workplace.
In a lone dissent, NLRB member Lauren McFerran—whose term ended December 16, 2020—called the majority’s decision “radical.” She said: “There can be no doubt that under the majority’s new approach, workers who are the targets of workplace investigations—fairly or unfairly—will be prevented from seeking the help of their coworkers, their union, or the Board, despite the ‘mutual aid or protection’ guarantee of Section 7.”
Former Board member McFerran has a point, but this workplace investigator and attorney believes her concern is overstated. There is little harm in permitting a workplace investigation to conclude under the protection of a confidentiality order and without the accused attempting to enlist the assistance of coworkers, the union, and even the NLRB to interfere with the orderly conduct of that investigation.
Attorney Gene R. Thornton is highly experienced in conducting workplace investigations of all types and is an Association of Workplace Investigators Certificate Holder (AWI-CH). He has over 30 years of experience representing both employers and employees in workplace disputes. Contact Mr. Thornton at Thornton Workplace Investigations, LLC for a free initial consultation for your next workplace investigation situation.