Hunton Employment & Labor Perspectives

In American Baptist Homes of the West d/b/a Piedmont Gardens (“Piedmont Gardens”), 362 NLRB 139 (June 26, 2015), the NLRB overruled longstanding precedent protecting the confidentiality of employee witness statements and adopted a new rule that balances the union’s need for the witness statement with the employer’s “legitimate and substantial confidentiality interests.” Since 1978, employee witness statements received by employers have been automatically exempt from disclosure to unions, no matter the circumstances. Now, as a result of Piedmont Gardens, an employer who cannot establish that it has a legitimate confidentiality interest that outweighs the union’s interest must disclose witness statements to the union in full. This will likely force employers to change the way they conduct investigations.

Even if an employer is able to establish a sufficient confidentiality interest that outweighs the union’s interest, the employer cannot simply withhold the statement in question. Instead, employers will only be permitted to seek “accommodations” with regards to the requested confidential information. Possible accommodations may include asking the union to enter into a non-disclosure agreement or providing only a summary of the witness statement. Regardless, employers will still be required to disclose the requested information – even if the balancing test favors their confidentiality interest. Because this decision presents a dramatic departure from the previous rule regarding disclosure of witness statements, it will not apply retroactively.

In applying the Piedmont Gardens rule, the Board will employ a two-part test. First, the Board will consider whether an employer can establish a qualifying confidentiality interest. The Board specified that “[e]stablishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of investigations.” In order to establish such an interest, an employer must make a case-by-case showing as to whether, as part of the employer investigation:

• A witness needs protection;
• Evidence is in danger of being destroyed;
• Testimony is in danger of being fabricated; or
• There is a need to prevent a cover-up.

If an employer is able to make this showing, then the Board will apply the second step and weigh the employer’s established confidentiality interest against the union’s need for the information. This weighing of interests will be highly subjective and will be difficult for employers to overcome.

As a result of Piedmont Gardens, employers should avoid promising absolute confidentiality to witnesses who provide statements during workplace investigations. Employers should also prepare for the possibility that, without the protective promise of confidentiality, employees may be more hesitate to cooperate with employer investigations in the first place. As such, employers may be hampered in their ability to conduct complete and thorough investigations. In order to convince employees to cooperate, employers should make clear that company policy prohibits retaliation against employees who participate in investigations.