In a well-publicized decision issued last year, Banner Health System, the National Labor Relations Board found that a policy requiring employee-witnesses to maintain confidentiality of workplace investigations interfered with the employees’ Section 7 rights to engage in protected concerted activity and thus violated Section 8(a)(1) of the National Labor Relations Act. In the Board’s view, the policy interfered with the right of employees to communicate about workplace issues.

Now the Board has released an Advice Memorandum that provides some “approved” language for confidentiality policies, as well as other insights into the Board’s position. The Advice Memorandum was issued in January, but it was not released to the public until this month.

Banner Health requires a case-by-case demonstration of confidentiality need

With rare exceptions, the current Board has aggressively moved to invalidate any workplace rules that “could” be read by employees to restrict any Section 7 protected concerted activity. Regional Offices of the Board investigating unfair labor practice charges are finding and challenging such rules on their own initiative, even when the charging party has not raised the issue. 

With respect to confidentiality rules applicable in employer investigations, the Board in Banner Health ruled that an employer must determine on a case-by-case basis whether employee-witnesses need 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. The Board found that the employer’s “blanket” approach of maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct violated the Act.

“Approved” language and some other guidance from the Division of Advice

In the Advice Memorandum released this month, the NLRB’s Division of Advice in Verso Paper provided sample language and some further clarification of the Board’s position. The memorandum addressed an employer’s Code of Conduct applicable at multiple paper mills that had the following rule:

Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it to strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

(Emphasis supplied).

The Division of Advice, in interpreting and applying Banner Health, determined that the last two sentences of the rule’s language above, in bold, made the rule unlawful because the rule “does not take into account the [e]mployer’s burden to show in each particular situation that the [e]mployer has a business justification for confidentiality that outweighs employees’ Section 7 rights.” The Division then provided substitute language for the two sentences in the Verso policy and said that its alternative 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 and including immediate termination.”

The apparent takeaway, and a warning

The language suggested by the Division of Advice does not relieve an employer from making the case-by-case determination that Banner Health requires, but it does arguably permit an employer to tell employees in advance that “if” a determination of “confidentiality need” is made based on the Banner Health factors, the employees must follow the confidentiality rule.  It should be emphasized that the Board views the issue of confidentiality rules in investigations from a litigation  perspective, and the employer must “meet a burden to demonstrate a business justification” for a rule that the employer thinks preserves the integrity of investigations. Given that perspective, employers would be prudent to document  the specific justification for confidentiality in each instance in which a confidentiality rule is imposed.

A word of caution – the Division of Advice provides guidance to the NLRB Regional Offices on legal aspects of unfair labor practice charges that Regions confront. A memorandum the Division issues does not have the force of a Board decision. Although the guidance is helpful and may be persuasive in convincing a Regional Office that an employer’s rule is lawful, it is not a guarantee. A Region and the Board itself can change its position at any time when it considers a specific case with specific language of a rule. This Board has shown little concern with establishing clear and consistent legal rules that employers, or, for that matter, unions and employees can count on to be followed by the Board in the future.

Here, the Board with Banner Health and Verso Paper is advancing its policy agenda, intent on broadening Section 7 communication rights at the expense of policies that employers try to apply in an objective, even-handed manner.  Instead of giving support to neutral confidentiality rules that are intended to help produce consistently accurate investigation results, which benefits employers and employees alike, the Board is substituting its judgment for the employer’s. The practical result will almost certainly be less confidentiality in employment investigations.

Unfortunately, perhaps the best that can be said is that the Board has not declared that employees have an unfettered right to communicate about employment investigations. Based on the authority of Banner Health and the Advice Memorandum, employers should feel relatively safe imposing confidentiality rules on a case-by-case basis when they have a demonstrable need to protect the integrity of the investigation.