An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

submit or take a polygraph, lie detector, or similar test or examination as a condition of continued employment or continued enrollment 1956 ii. Admonition Not To Discuss Investigation With Co-Workers Or Students To safeguard the integrity of the investigatory process, employees and students who are interviewed are commonly directed not to discuss with others, including any other employees or students:  The fact that they are being interviewed;  The existence of an investigation; or  The questions asked or answers provided during the interview process. This type of blanket directive is problematic when issued to employees. In a National Labor Relations Board (“NLRB”) decision, the NLRB found that a private employer violates the National Labor Relations Act (“NLRA”) by asking an employee who was the subject of an internal investigation and witnesses to refrain from discussing the matter while the employer conducted the investigation. 1957 The employer, Boeing Company, provided notice to all employees who were interviewed as part of an internal investigation by human resources, that the employees were “directed not to discuss this case with any Boeing employee other than the company employees who are investigating this issue or your union representative, if applicable. Doing so could impede the investigation and/or divulge confidential information to other employees.” Boeing argued the confidentiality requirement in all investigations was lawful based on legitimate business considerations, including protecting witnesses from retaliation or harassment, and preventing rumors from being spread. The NLRB disagreed, ruling that the blanket policy infringed on the employees’ statutory rights to discuss among themselves the terms and conditions of their employment. It noted that, while an employer may require confidentiality in certain limited circumstances, even when those limited circumstances apply, the employer must minimize the impact of such a requirement on the rights of employees to engage in concerted activity. By having a blanket policy applied to all investigations, Boeing did not consider on a case-by-case basis whether the particular circumstances of that investigation justified the confidentiality directive and was designed to prevent legitimate concerns of witness harassment or intimidation or the destruction of evidence or other misconduct. Boeing updated its confidentiality notice to “recommend” that employees not share information instead of “requiring” it. The NLRB found, however, that this was a difference with no meaning. The test is not whether the language sounds permissive or not, but rather what the likely effects will be on employees. Given the totality of the circumstances here, the NLRB agreed that even though the language was a “recommendation,” employees would likely still believe they could not speak about the investigation and could not defy Boeing’s recommendation. Accordingly, schools that ask employees to maintain confidentiality during an investigation of either employee or student misconduct should be prepared to establish that confidentiality is necessary to protect a witness, prevent the destruction of evidence, preserve testimony, prevent a cover-up, or further another legitimate business interest. Also, when giving the directive, the

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 458