On June 26, 2015, the NLRB (“Board”) overruled, in a case titled American Baptist Homes of the West, its 45-year old precedent regarding the discoverability of witness statements. When an employer is faced with workplace misconduct, it will often conduct an investigation. During that investigation, it may obtain witness statements. In some cases, there are fears of retaliation or other concerns that make it appropriate to protect the witnesses’ identities and statements, and assure the witness that his or her statement will be kept confidential. When a union represents an employee negatively affected by witness statements, the union often requests copies of them.
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