How the NLRB's 'balancing test' could hinder employer investigations
HR knows that once an employee’s complaint is heard, an internal investigation should follow. And if the complaint is about a discriminatory, sexual or other unlawful offense, an investigation is imperative.
Conducting investigations is one of the hardest tasks for HR managers. Getting unwilling witnesses to come forth, finding out what information is applicable and — above all — making sure the process is as fair to the alleged violator as to the alleged victim are challenging.
Witnesses are the center of any investigation. HR relies on accurate accounts of offenses by aggrieved employees, the accused and any eyewitnesses who can honestly vouch for what was seen or heard. To get witnesses’ full and unencumbered cooperation, HR offers them complete confidentiality and asks them to avoid discussing the investigation with coworkers. That is, until now.
The National Labor Relations Board adopted a new standard for employers conducting internal investigations. It instituted a “balancing test” to determine whether employers must set aside confidentiality assurances for witnesses and grant unions’ requests for information.
By asking employees not to discuss investigations with each other to ensure confidentiality and fairness, the NLRB says employers are denying them their right to “protected concerted activity,” or the right to assemble and discuss workplace issues, says David Durham, partner at DLA Piper, an international law firm.
In short, employers can’t guarantee confidentiality, which can impede an investigation, he adds.
What happened before the “balancing test”
For the past 35 years, the NLRB held that employers aren’t required to give confidential witness statements to unions requesting information.
In Anheuser-Busch, Inc., 237 NLRB 982 (1978), the NLRB viewed witness testimony as separate from other types of information unions might request. It also held that releasing testimony puts employees at risk for witness intimidation and makes them reluctant to participate in investigations without assurances of confidentiality.
For other types of information unions request, such as witnesses’ names or addresses, the NLRB applied the balance test, a stand it took in Detroit Edison v. NLRB, 440 U.S. 301 (1979).
Now, the NLRB says employers can’t guarantee employee witnesses total confidentiality or tell them they can’t discuss investigations with other employees. Also, the balance test puts the responsibility for proving that a worker should be assured confidentiality in an investigation on the employer.
Employers challenge the NLRB ruling on appeal
American Baptist Homes of the West, a skilled nursing facility better known as Piedmont Gardens, and Banner Health, a nonprofit health system, are challenging the NLRB in the D.C. Circuit Court of Appeals.
The NLRB held up the balancing test rule against both employers on June 26, 2015. The appeals court agreed to hear oral arguments in both cases on Feb. 6 for Banner Health and Feb. 9 for Piedmont.
Without revealing details of either case, Durham describes the kind of scenarios that can trigger the NLRB’s balancing test:
Case 1: A union steward falls asleep on her hospital shift. A coworker, also a union member, happens to catch her snoozing. Concerned about patient care and safety, the coworker reports the issue to HR, who meets with him to take a statement. HR assures the coworker of confidentiality and that the union will never see his statement. The union, however, requests information from his statement.
NLRB: HR can’t guarantee the coworker total confidentiality if the union requests information from his statement. HR must prove the coworker’s testimony merits confidentiality under the balancing test.
“Ensuring confidentiality is the only way to conduct fair investigations,” says Durham, who’s firm is representing Piedmont. “Employers must investigate by law, but the NLRB ruling makes it hard for them to comply.”
Case 2: An employee makes unwanted sexual advances towards a coworker. The coworker reports the behavior to HR, who immediately begins an investigation. The coworker tells HR that two other employees witnessed the behavior. HR speaks privately with each witness. To keep the investigation fair to both the alleged perpetrator and the alleged victim, HR asks each witness not to talk about the investigation with other employees.
NLRB: Instructing employees not to talk to coworkers about the investigation violates their right to assemble and talk about workplace conditions, under the “protected concerted activity rule.”
“Witnesses face peer pressure from not discussing a case,” says Durham. “The NLRB seriously hamstrings employers from doing thorough investigations.”
Durham told HR Dive that employers might think the cases will get overturned and that they don’t need to worry about the NLRB ruling. But that might not be the outcome, he warns. Employers need to pay attention to both cases.