Internal investigations are always sensitive matters, and in many cases employers will request that employees maintain confidentiality regarding the ongoing process. However,not all policies of this nature are lawful. In 2012 the National Labor Relations Board (NLRB) found that some confidentiality policies constituted a violation of employee’s Section 7 rights. The landmark case involved Banner Health’s policy of prohibiting employees from discussing any detail of an internal investigation with their coworkers. The NLRB determined that there must be a “legitimate business justification that outweighs employees’ Section 7 rights” in order for such a policy to be lawful.
It is hard to say when business interests outweigh employees’ rights, and judgment regarding the validity of confidentiality policy will certainly be on an ad hoc basis. However, the NLRB has released a set of guidelines under which confidentiality policy for internal investigations maybe valid. These include circumstances under which:
- Witnesses need protection
- Evidence is in danger of being destroyed
- Testimony is in danger of being fabricated
- There is need to prevent a cover up
There is a further a distinction which allows employers to request confidentiality, although they may not require it. In all circumstances, internal investigations require careful and appropriate handling on the part of the employer so as not to violate employee rights. If you are uncertain or uncomfortable with the requirements of your employer during an ongoing internal investigation, you should not hesitate to contact legal assistance.
