Recently, the National Labor Relations Board (NLRB) ruled that employers can require confidentiality from employees involved in a workplace investigation. This ruling overturned the previous, Obama-era ruling that stated employers were required to determine, on a case-by-case basis, whether or not demanding confidentiality infringed upon an employee’s statutory rights to discuss the terms and conditions of their employment.
Investigation Integrity
Despite the protection of employee rights that the Obama-era ruling intended, employers found over time that it became difficult to protect the reporting employee and other employees from retaliation. Furthermore, there were incompatibilities with other recommendations for blanket confidentiality policies that go into effect during workplace investigations.
Employee Rights
To come to the rules included in the new ruling, the NLRB analyzed workplace investigations against the criteria used in its recent Boeing Co decision where workplace rules fell under one of three categories:
Category 1: rules that the Board will designate as lawful to maintain because, when reasonably interpreted, they do not prohibit or interfere with the exercise of employee rights or the potential adverse impact on protected rights is outweighed by associated justifications;
Category 2: rules that warrant specialized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights and, if so, whether any adverse impact on NLRB protected conduct is outweighed by legitimate justifications; and
Category 3: rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRB rights is not outweighed by the justifications associated with the rule.
The NLRB determined that workplace investigations fall under category 1 and therefore, employers may require confidentiality from parties directly involved with an open workplace investigation. Employers should note, however, that they cannot require confidentiality from employees not involved in the investigation, and cannot prohibit any employee from discussing the events leading to the investigation at any time. The ruling does not allow employers to prohibit discussion of discipline or events that may result in discipline.
In fact, the actual ruling is fairly narrow – pertaining only to the investigation of incidents or interviews conducted during the investigation that pertain directly to it.
What Employers Need to Do
As an employer, now is the time to review your internal policies and rules. If you have an employee handbook (you should), review and edit as necessary. Ensuring that your internal policies align with this ruling and have clearly stated rules that make your expectations as a company clear is important. It should be noted that this ruling only allows the required confidentiality to exist while an investigation is open and ongoing, and your rules should apply as thus. If you’re not sure how to manage this portion of your employee experience, give us a call. As a PEO, we can help make it easy.
Roger Hays currently serves as President and CEO of PassioHR, Inc., based in Englewood Colorado. PassioHR was founded in 2021 by Roger after having spent over twenty years working in various positions in the Professional Employer Organization (PEO) market.
His areas of expertise are Human Resources management; Benefits Administration; Government Affairs; and Business Management.
Mr. Hays currently serves as the Chair the Leadership Council for NAPEO in Colorado and serves on their PAC committee, Federal Government Affairs and State Government Affairs Committees as well. In addition to NAPEO Roger is a past Leadership Council Chairman for the National Federation of Independent Business (NFIB) in Colorado and serves on their PAC committee as well (NFIB is the voice of small business, advocating on behalf of America’s small and independent business owners, both in Washington, D.C., and in all 50 state capitals). He is a past Board President for the Colorado Civil Justice League (Colorado Civil Justice League is the only organization in Colorado focused exclusively on limiting unreasonable lawsuits and preserving common sense in the courtroom). Roger has been appointed by the Governor of Colorado, three times, to serve as a Board member on the Colorado Uninsured Employers Board. (The CUE board was established by the CO legislature to provide financial assistance to individuals injured while working for employers who did not carry workers’ compensation insurance in violation of Colorado Statute.)
Roger spends many hours each Legislative session working with state Legislators in Colorado on behalf of the PEO industry as well as small business in general testifying in front of committees or just interacting with individual legislators on issues important to those groups. He also works with the Colorado Department of Labor and Employment, serving on a number of taskforces to help guide the department in dealing with Unemployment and Labor issues.
Mr. Hays Graduated from North Dakota State University with a BS Degree in Political Science and is an avid Bison supporter.
