Anyone involved with internal investigations has heard the familiar refrain that the investigation is confidential and that they are forbidden to discuss it with anyone. Often, employers go so far as to forbid employees under investigation from contacting anyone connected to the investigation while it is ongoing. Recent case law from the Public Employment Relations Board (“PERB”) and the National Labor Relations Board (“NLRB”) may change whether employers can give such broad, boilerplate directives.

In Perez v. Los Angeles Community College District, PERB Decision No. 2404 (December 24, 2014), PERB determined that an instruction to an employee “not to contact any members of the faculty, staff or students” while on administrative leave pending a fitness-for-duty evaluation violated the Educational Employment Relations Act (“EERA”) because it interfered with the employee’s exercise of protected rights. In so holding, PERB noted that it is a fundamental principle that employees have the right to discuss their working conditions amongst themselves. The District’s actions infringed on that right by forbidding all contact between Perez and District employees in connection with the actions taken against Perez. PERB found that, as drafted, the scope of the directive to Perez was overbroad and failed to specify the conduct that it sought to prohibit. PERB noted, however, that in other circumstances, an employer may be able to demand confidentiality of an investigation but that the burden is on the employer to demonstrate a legitimate justification that outweighs employees’ protected rights.

This decision follows, and is consistent with, a similar decision issued by the NLRB last year in Banner Health System dba Banner Estrella Medical Center and James A. Navarro (2012) NLRB Case 28-CA-023438. In that case, the witnesses to an internal workplace investigation were given an instruction to maintain confidentiality. The NLRB held that such a blanket instruction violates the rights of employees to engage in “concerted activity” regarding their working conditions. A more detailed discussion of that case can be found in the January 2013 Labor Beat available here (see page 6).

Comment: The practical impact of these decisions remains to be seen. Under PERB’s ruling, employers can still require confidentiality during an investigation, but must demonstrate that it is necessary for some reason (i.e., avoiding fabricated or collusive testimony, destroying evidence, etc.). At the very least, this decision precludes the employer from issuing blanket confidentiality orders in every case and requires them to tailor all confidentiality orders to the specific case.

If you encounter a blanket confidentiality instruction, we recommend asking for the basis of the instruction. Remember, however, the mantra “obey and grieve”—comply with the order to avoid insubordination charges and grieve the issue later.

If you have any questions, please contact Jennifer Stoughton at jennifer@majlabor.com.