By Ellen Greenstone

The rules on what investigators can say about confidentiality to witnesses and parties have been shifting, and we may see more changes ahead. We had our old practices, then we had Banner, and now we have Apogee. What’s next? Read on for a review of this evolving issue for private-sector employers.

The National Labor Relations Act (Section 7) guarantees employees in the private sector the right to engage in “protected concerted activity,” even if a union is not involved. This right ensures that employees can talk about their pay and working conditions without retaliation from their employers.

The National Labor Relations Board’s (NLRB) decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015) caused a lot of hand-wringing among workplace investigators. Banner held that employers could not have a blanket rule prohibiting employees from discussing ongoing investigations unless there was proof, on a case-by-case basis, of a legitimate business justification that outweighed employees’ Section 7 rights.

The rule shifted in 2019, when the NLRB overruled Banner in Apogee Retail LLC, 368 NLRB No. 144 (2019). Apogee held that an employer rule requiring confidentiality of an investigation could be lawful when it was limited to the duration of an open investigation. The confidentiality rules may not restrict nonparticipants in the investigation from discussing working conditions generally, and additional rules apply in a unionized shop where the union requests information for its employee representation.

Playing It Safe as an Investigator

• Find out if the employer has a confidentiality rule. If you believe the employer’s rule may conflict with NLRB rulings, raise this with the employer or the employer’s counsel.
• Advise the witness of the employer’s policy regarding confidentiality. Tell them the policy applies both to what the employee tells you and to what the two of you discuss during the interview.
• Say you will keep the information as confidential as possible, but never promise complete confidentiality. You may use the content of what they tell you to question other witnesses, and you will be reporting to the employer or their counsel at a minimum.
• Use a script for giving the confidentiality admonition so you use the same language for everyone you interview. Keep a record of that script in your notes.
• If interviewees express concern about being retaliated against, probe why they feel that way and reinforce the company’s no-retaliation policies as well as other laws prohibiting it.
• Explain to reluctant interviewees why confidentiality is important. It protects the integrity of the investigation because memories can change when people hear secondhand information. Tell employees they can say, “Sorry, I can’t talk about it. That’s the rule. It’s not up to me.”

The law is evolving, and the election of President Biden means a newly constituted NLRB. Watch for further developments.

Ellen Greenstone, an attorney, is an investigator at PII. She practiced labor and employment law for more than 40 years before joining PII and is an Association of Workplace Investigators Certificate Holder (AWI-CH).