When companies conduct internal investigations into alleged employee misconduct, witnesses being interviewed are routinely instructed to maintain confidentiality of their knowledge of and participation in the investigations. The obvious reasons for maintaining confidentiality include: to encourage witnesses to participate in company investigations, to protect witnesses from possible retaliation, to increase the likelihood that witnesses will accurately describe the facts and to promote a fair and impartial process. Without the ability to protect the integrity of an investigation, employers have greater difficulty in verifying and remediating workplace misconduct.
Despite precedent which recognized the importance of maintaining the confidentiality of company investigations into employee misconduct,1 the National Labor Relations Board (NLRB), in two recent decisions, Hyundai America Shipping Agency, 357 N.L.R.B. No. 80 (2011) and Banner Health Systems, 358 N.L.R.B. No. 93 (2012), continued its trend of challenging long-accepted practices by employers.2 In Hyundai and Banner Health, the NLRB upended the careful balance that existed between the confidentiality expected by employers conducting investigations into employee misconduct and the rights of workers to discuss such investigations with coworkers under Section 7 of the National Labor Relations Act (NLRA).
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