Keep Your Mouth Shut: Avoiding Unlawful Privacy Requests During Workplace Investigations

Workplace investigations are tough enough without the office grapevine gossiping about who did what to whom. As such, it's standard practice to ask anyone who participates in an investigation to keep their mouths closed about what is discussed behind the closed doors. A new ruling from the National Labor Relations Board (NLRB), however, suggests that a blanket "keep your mouth shut" mandate may be improper.

The Case behind the Concern

Like many investigators, the HR director for Banner Heath Systems asked workers involved in an in-house investigation to not talk about the investigation with their co-workers. However, James, one of the employees involved objected that this request violated the rights of employees to discuss the terms and conditions of their employment with their coworkers. The National Labor Relations Board sided with James, saying that blanket requests for confidentiality during an investigation are overly broad and might have a chilling effect on appropriate - and legally protected - communications.

So what's an Investigator to do?

This is a new ruling (July 30, 2012) and time will tell what this means from a practical standpoint. However, the NLRB's ruling does offer some guidance. First of all, investigators can still ask witnesses to keep quiet as long as they have a legitimate business interest in making the request. This business interest must extend beyond the usual "we're trying to protect the integrity of the investigation" reasoning.

So what business interest is legitimate? It is one that arises from that particular investigation. Perhaps, for example, the facts you've uncovered so far suggest that the accused might try to intimidate witnesses if s/he learns they will be talking to an investigator. Perhaps you haven't had a chance to retrieve some valuable evidence and are concerned that, if the investigation leaks out, it might be destroyed before you have a chance to do so. Or perhaps you have reason to believe (again, based on what you've uncovered) that a group of witnesses might get together and "get their stories straight" before you have a chance to interview them individually.

In addition, when you do feel requests for privacy are warranted, limit the scope as much as possible. For instance, ask that the witnesses not discuss the investigation as long as it's active or during work hours or on company property.

The Bottom Line

In every investigation, investigators walk a tightrope, trying to balance a number of competing interests. This recent ruling extends those competing interests to include the need to maintain confidentiality and employees' rights to discuss the conditions of their employment. For now, the best solution during an investigation is to avoid blanket requests for privacy, articulate valid reasons for privacy requests when they occur, and make sure your requests are as limited as possible.

What Could Setting 'Living Guidelines' Do for the Economy?

Labour leader Ed Miliband has backed the idea of a living wage, stating he may make it part of his party's manifesto for the next election. It is a simple idea that aims to lower the amount of people living in poverty in the United Kingdom. The labour party believes that by giving employers a guideline of how much it actually costs to live it will encourage them to pay their staff fairly.

For example, the national minimum wage for people over 21 years of age is currently £6.19 (for 18-20 year olds it is considerably lower at £4.98). The living wage has been set at £8.55 in London and £7.45 in the rest of the United Kingdom. This means if a 19 year old was working full time on minimum wage and living on their own in London they would be short of, on average, £2.47 a month.

Reliable data from the Annual Survey of Hours and Earnings 2011 (from the Office for National Statistics) shows that, of the adult workforce who work full time, the lowest 10% of workers earned on average £7.04 an hour. The top 10% earned on average £26.63 an hour. Meanwhile amongst the part time UK workers the lowest 10% earned £5.93 and the top 10% earned £19.92, and 40% of part time workers earned £7.19. This is a considerable portion of the working population who aren't earning enough to support themselves independently.

Some employers pay their employees over the living guidelines anyway so the guidelines don't apply to them, however, only roughly 140 employers take note of the living wage guidelines and pay accordingly and some employers pay less than the living guidelines without being aware of it. Of course, at the moment the living guideline is just that, a guideline. Employers are under no obligation to pay their workers any more than the minimum wage.

This isn't a new development. It was developed to the way it is today in 2005 when it was picked up but the Greater London Authority. Since then it has be supported by Ken Livingstone and, more recently, Boris Johnson as well as other UK employers. The cleaning staff at the Houses of Parliament went on strike in 2005. Their aim was to bring their wages up to meet the living guidelines, which they achieved in 2006.

With the Labour party backing the idea, it has been given fresh perspective. If employers are encouraged to pay their workforce slighter higher, the government could potentially save millions every year of the amount they pay out in benefits.