Employers across the country have operated in a sea of gray area when it comes to confidentiality among employees regarding internal investigations. The question remained whether or not employers were able to require employees to keep internal investigations internal while they were in full swing. Prior to the new year, the National Labor Relations Board finally answered that question.
Previously, the National Labor Relations Board (NLRB) had taken a position that employers could not require employees to keep ongoing internal investigations confidential because it generally violated labor law. Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing.” Universal requirement of confidentiality could potentially interfere with that law. Confidentiality in internal investigations was instead dealt with on a case-by-case basis, with no precedent for blanket confidentiality. This topic has been in review by the NLRB since May of 2019, but it was only recently that the board announced that they had reversed their position.
By their very nature, internal investigations are already a big headache for many employers. Further compounding these frustrations is the ideation that no internal investigation can generate meaningful results unless the integrity of the internal investigation is maintained by all employees of the corporation or organization. This new standard of approval by the National Labor Relations Board is a categorical win for employers. The win comes down to one word—duration. In articulating their decision, the majority wrote,
“There are obvious mutual interests to be served by encouraging and allowing employees to report wrongdoing without fear of reprisal from the subject of the investigation. Among other considerations, such reporting promotes the goals of the antidiscrimination statutes by helping employers eradicate workplace discrimination and deal with it promptly and effectively when it occurs.”
This articulation is indirectly evocative of the cycle of corporate culture, a process by which cause and effect on the parts of both leadership and employees in pursuit of improved operations leads to a healthy corporate culture for the entire workforce.
While there are concerns that the future of this reversal may affect an employee’s ability to organize, the projection of this reversal is very good news for internal investigations. In any investigation, the control of information is critical to finding solutions to the corporate crisis, allowing investigators to use tried-and-true methodology to get to the root of the problem. With the NLRB finally taking a position that allows employers to require confidentiality, the integrity of those internal investigations can now be maintained from the onset, leading to clearer solutions for the pervasive issues that malign corporations and organizations.