A recent decision by the NLRB has many employers (and their lawyers) up in arms. It has left me wondering whether maybe the Board needs a dictionary.
In Banner Health Systems, 358 NLRB 93 (2012), the Board held that an employer’s instruction to employees to keep information confidential during an internal investigation violated the employee’s Section 7 rights under the NLRA. In that case, an employee filed an internal whistleblower complaint about instructions he’d received from his supervisor that the employee felt would endanger patients. An HR consultant told the employee not to discuss the matter with co-workers while it was being investigated.
The ALJ held that this prohibition did not violate the NLRA but the NLRB disagreed.
As the basis for its finding, the NLRB found that, although an employer could require its employees to maintain the confidentiality of an investigation, it must first determine whether that step is really necessary. The Board held that, to make this determination, an employer must first look at whether: (1) witnesses were in need of protection; (2) evidence was in danger of being destroyed; (3) testimony was in danger of being fabricated; and (4) there was a need to prevent a cover-up.
So, dear readers, have you ever conducted an internal investigation in the workplace? An “investigation,” by its very definition, implies that there is a suspicion and/or report of wrongdoing. (You don’t say that you’re going to “investigate” whether an employee put in all-star effort to exceed his sales quota last month, do you?). If you are conducting an investigation of any kind and under any circumstances, I would argue that, at the very least, the last three questions suggested by the Board will be answered in the affirmative.
If you didn’t care whether the to-be-questioned witnesses got together and matched their stories up in advance, you wouldn’t call it an investigation, would you? You’d call it conversation. Heck, you may even call it party talk, or dinner-table chit-chat but you would not call it an “investigation.”
But you needn’t take my word for it. Black’s Law Dictionary, defines the word, investigate as follows:
To inquire into (a matter) systematically; to make (a suspect) the subject of a criminal inquiry