The NLRB has been extremely busy lately, dealing with posting of unionization rights, social media policies, at-will employment, and now confidentiality of internal investigations.
In a July ruling, the NLRB held that an employer’s practice of asking employees not to discuss ongoing, internal investigations with other employees violated the National Labor Relations Act. The employer argued it asked employees not to discuss ongoing investigations so it could protect the integrity of the investigation.
The NLRB found that wasn’t enough to infringe on the employees’ rights under the labor-relations law. Instead, the NLRB ruled the employer had to determine whether one of the four following risks existed before asking employees not to discuss an investigation:
- Witnesses need protection
- Evidence is in danger of being destroyed
- Testimony is in danger of being fabricated
- There is a need to prevent a cover up
Unless employers can specifically identify one of these risks before they begin an investigation, they may be in hot water with the NLRB if they ask employees not to discuss the process.
This continues an unsettling trend for employers of the NLRB expanding its reach well beyond its traditional areas of enforcement.