Section 7 of the National Labor Relations Act (which applies to almost all unsupervised workers, not just those working in a union environment) provides that workers have the right to freely discuss working conditions as a legally protected and concerted activity. As a result, according to the NLRB, employers may ask workers not to discuss an ongoing investigation unless the employer has a “legitimate and substantial business justification” for requesting confidentiality over workers` rights under Section 7. Third, always start the investigation immediately and schedule, whenever possible, closely collaborative interviews, so that there is as little time as possible between the complaint, the investigation and the closing. Less time from start to finish reduces opportunities for stakeholders, including witnesses, to discuss topics with each other. Responding to an employee`s complaint about employment issues not only allows the employer to gather the best information, but also allows the employer to resolve internal problems before they spread. Since any complaint could become a litigation, a well-planned and documented investigation may be an employer`s best defence. Employers and investigators often face the challenge of sorting out fictional facts when considering an allegation of misconduct at work. In the course of a thorough investigation, employers are often required to interview different employees with potential information about allegations of misconduct. In the context of the desire to have the most impartial and neutral testimony and to conduct thorough and effective investigations, investigators often advise employees not to discuss the investigation with colleagues until the investigation is complete. Second, assess the circumstances of each investigation. Consider whether confidentiality is objectively necessary to prevent corruption of the investigation. Is there a risk for witnesses to destroy evidence or make up stories, or is there a risk of a cover-up if employees are not informed of confidentiality? Are there other reasons for requesting confidentiality in this specific investigation? If this is not the case, employees should not be told that they cannot discuss the investigation with co-workers. In this case, the reasons for the confidentiality requirement should be recorded in the investigation information.
“While we are doing the rest of this investigation, please don`t talk to other employees about what we talked about today.” On the basis of this framework, the board found that the confidentiality rules applicable to investigations limited to the duration of the investigation fall within category of Category 1 legislation, which does not require a balancing obligation between the employer and the worker.