The National Labor Relations Board (NLRB) has ruled that employers can no longer automatically withhold witness statements from unionized employees who are investigated for workplace misconduct.
In Piedmont Gardens, 362 NLRB No. 139, the NLRB ruled that employers must undertake a case-by-case balancing of the union’s need for the information against “any legitimate and substantial confidentiality interests established by the employer.” In the past, employers automatically sealed witness statements, ostensibly to protect witnesses from intimidation, harassment and retaliation. However, there was no blanket exemption for the names of witnesses. The result of the NLRB ruling is that witness statements will be treated like the names of witnesses.
According to the NLRB: “There is no basis for concluding that all witness statements, no matter the circumstances, warrant exemption from disclosure… if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party’s need for the information.”
While the board’s ruling is limited to unionized workplaces, it could have broader impact as employers adopt uniform policies to address workplace discrimination, harassment, and retaliation. [Read more…]