Is Speed the Answer to the NLRB’s Decision on Workplace Investigations?
August 3, 2012 3 Comments
In this week’s Banner Estrella Medical Center [pdf] decision, the NLRB held that employers may violate employees’ rights to engage in protected concerted activity when requesting employees not to discuss an ongoing investigation into allegations of workplace misconduct.
In this case, the employer’s standard procedures for internal investigations required investigators to request that employees not discuss an ongoing investigation. At the trial level, the judge did not find this standard procedure problematic because it served the legitimate business purpose of protecting the integrity of the investigation. The NLRB disagreed and reversed the judge’s decision on this issue.
While this controversial decision will be tested, employers are left to figure out what to do in the meantime to protect the credibility and accuracy of an internal investigation. There are three things that employers can do now:
- Employers should review and modify, where appropriate, all internal investigation policies, procedures and forms to determine whether there are nondiscretionary requirements that employees always be instructed to maintain confidentiality of workplace investigations.
- Employers should ensure that their internal investigation policies provide guidance on when such confidentiality instructions are appropriate.
- Employers should focus on increasing the speed of investigations, which means they need to ensure they have identified well-qualified investigators who are ready to go when the need arises and may also mean involving multiple investigators or a team of investigators to complete document review, witness interviews, and follow-up as quickly as possible to combat the risks of witness contamination and more.
With this decision, the focus on the speed of an investigation will be sharpened. Employers should consult with local investigation resources or the Association of Workplace Investigators (www.aowi.org) in order to locate and retain competent investigators who can respond quickly and in teams.