Many businesses and organizations will, at some point, need to conduct an internal investigation into possible employee misconduct, whether it’s just as a preventive measure or if there’s actual suspected wrongdoing at play.
The National Labor Relations Act makes sure employees have the right to take action to receive protection or mutual aid, including the right to discuss any disciplinary matters or investigations involving their coworkers or themselves. Therefore, there’s always a sort of tension existing between the employer’s vested interest in making sure its investigation is not interfered with and an employee’s right to discuss the investigation with coworkers.
A 2012 ruling from the National Labor Relations Board (NLRB) in Banner Estrella held that there must always be a balance between these ever-competing interests of employers and employees. The ruling stated that employers must demonstrate that any requests for confidentiality that would somehow interfere with employees’ rights to discuss the ongoing investigation must be supported by evidence showing the employer has a legitimate business-related reason for seeking a confidentiality requirement. Examples could be situations in which the company must protect witnesses and/or if there was a need to prevent some sort of cover-up.
However, in its decision the U.S. Supreme Court, in Noel Canning, sent the case back to the NLRB. On June 26, a majority of the board determined once again that “blanket confidentiality” requirements are unlawful. This latest decision once again states employers must have a reasonable basis for asking for confidentiality during investigations.
For more information on how this ruling could affect how you go through internal investigations within your business or organization, speak with skilled Dallas Attorney Steve Kardell at Whistleblower Law for Managers.