NLRB Issues New Guidance on Confidentiality Requirements During Workplace Investigations

Last year the National Labor Relations Board (NLRB) found that a policy requiring employee-witnesses to maintain confidentiality of workplace investigations interfered with employees’ Section 7 rights to engage in protected concerted activity. This decision was issued in a case involving Banner Health System, which had a blanket policy of prohibiting employees from discussing testimony, facts or other issues related to a Company investigation of employee misconduct. The Board decided that blanket policies of confidentiality might interfere with the right of employees to communicate about workplace issues.

In Banner Health, the Board ruled that an employer must determine the need for confidentiality on a case-by-case basis considering such facets as:
  1. Whether employee-witnesses need protection
  2. Danger of destruction or potential to destruct evidence
  3. Testimony is in danger of being fabricated
  4. Need to prevent a cover-up of information related to the investigation
Recently, NLRB released an Advice Memorandum that allows some confidentiality under certain conditions. The NLRB’s Division of Advice in Verso Paper provided sample language and clarification of the Board’s position regarding confidentiality in employer workplace investigations. The Verso Paper’s Code of Conduct stated that employees must maintain confidentiality during investigations and violations of the policy would be subject to discipline, up to and including immediate termination.
The Board suggested that the following Employee Conduct Policy language would be lawful:
Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality; we may be subject to disciplinary action up to an including immediate termination.
The Division of Advice provides guidance to NLRB Offices, however, a memorandum the Division issues does not have the force of a Board decision. Nevertheless, given this Verso guidance, employers are probably safe in imposing confidentiality rules on a case-by-case basis when there is a demonstrable need to protect the integrity of the investigation.

Based on Constancy, Brooks & Smith LLP Client Bulletin #499. Author:  David Phippen


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