For public employers, according to the California Public Employment Relations Board (PERB), confidentiality admonitions violate employee rights. However, for private employers, according to the National Labor Relations Board (NLRB), employer policies regarding confidentiality during investigations will be presumptively lawful for the duration of an investigation.
The Association of Workplace Investigators (AWI) recommends that “all participants in an investigation, complainant, respondent, witnesses, should be cautioned both in writing and verbally in regard to their confidentiality obligations.” Moreover, confidentiality is critical in order to maintain the integrity of the investigation.
The following are some of the questions regarding confidentiality that California employers may face during the pendency of workplace investigations.
Can the investigator keep the complaint confidential?
Employers can only promise limited confidentiality – that the information will be limited to those who “need to know.” It is not possible to promise that a complaint can be kept entirely “confidential” for several reasons:
- If the complaint is about potential violation of the law or a policy, the employer will need to investigate, and in the process of investigating, it is likely that people will know or assume details about the allegations, including the identity of the complainant. Even when the complainant’s name is kept confidential, allegations are often clear enough for witnesses and respondents to recognize who made them.
- The investigator may need to consult with someone else at the company to collect information about whether there have been past complaints involving the same employee. That means the complaint will be discussed with others within the organization.
- The company may need to take disciplinary action. While the identity of the complainant may, in some cases, be kept confidential, the complaint itself cannot be.
Can employers tell employees not to talk about the investigation?
Managers can, and should, be told to keep the investigation confidential. However, there have been court rulings that say it is inappropriate for an employer to require employees to keep the information confidential since employees have the right to discuss their work conditions. There are exceptions to this; The NLRB has noted that a confidentiality instruction could be valid where an employer showed that:
- An investigation witness needed protection.
- The evidence was at risk of being destroyed.
- Testimony was at risk of being fabricated.
- There was a need to prevent a cover-up.
If an employer wants to require confidentiality, they might want to check with an attorney about when it is appropriate and how to do so.
Why Choose California Labor Solutions?
California Labor Solutions (CLS) is an HR services firm established in 2007. We proudly serve businesses and public sector organizations throughout California. We have conducted hundreds of workplace investigations with the utmost levels of efficiency, integrity and professionalism.
California Labor Solutions is one of the only HR firms in California that is licensed* to provide external workplace investigations. Avoid the risk and do it right the first time. CLS is your best option for affordable, premium workplace investigation services.
*California Private Investigator License Number 26311.