Wednesday, August 1, 2012

The End of Workplace Investigations As We Know Them?

Quite possibly, if a federal court upholds the latest NLRB opinion.

It is generally a caveat of an internal workplace investigation that participants in the investigation, whether they be victims, witnesses, or targets of the investigation, are not to discuss the matter under investigation or the investigation itself with their coworkers until the investigation is completed. The reasons for such a requirement are obvious: knowing that an investigation is in progress, and its focus, creates a very real prospect of witness accounts being altered, fabricated, or coerced, evidence being destroyed, or other steps taken to frustrate the employer's ability to get an accurate picture of what actually occurred.

But the NLRB finds that this routine instruction, which is often key in sensitive investigations such as those surrounding sexual harassment complaints, is a violation of the National Labor Relations Act. Specifically, a majority of the Board determined that prohibiting employees from discussing an ongoing investigation with their coworkers interfered with the employees' rights to engage in "protected, concerted activity".

As I have noted previously, federal employment agencies such as the EEOC and NLRB are working to eliminate general workplace rules by which management has functioned for decades. Instead, the agencies are forcing employers into specific, fact-finding exercises that must occur before any workplace policy is put into actual effect. Here, the Board required the employer to make a specific determination as to whether any given witness in the investigation needed protection, whether testimony was in danger of being fabricated, or whether there was a need to prevent a cover-up. Absent specific determinations by the employer (presumably reviewable by the Board with the benefit of perfect hindsight) that such danger was present, the "no discussion" rule was a violation.

Of course, it is frequently impossible to determine at the outset of an  investigation (when such instructions are typically given) whether there is a danger of a cover-up, witness fabrication, or other risks. Often by the time such a determination can be supported with actual evidence, it's too late because employees have modified their stories in response to the questions they know are coming, e-mails have disappeared, and employees have colluded on their version of events.

If this interpretation is upheld, it means that employers will have to make some type of record as to the various bases they have for keeping an investigation confidential, and the facts to support those bases.  The decision represents yet another highly intrusive move by the Board into the workplace of most US businesses.

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