Employers may not maintain a blanket rule requiring confidentiality during employee investigations, the National Labor Relations Board (NLRB) recently cautioned – but the NLRB memo also offered guidance on how to properly draft a confidentiality policy.
In an Advice Memorandum from the NLRB’s Office of the General Counsel, the agency considered the confidentiality policy of Tennessee-based Verso Paper, a national paper mill operation. According to the company’s employee code of conduct:
“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 in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”
The NLRB found the policy overbroad and in violation of employee rights pursuant to the National Labor Relations Act (NLRA).
“Employees have a Section 7 right to discuss discipline or disciplinary investigations involving their fellow employees,” according to the memo. “An employer may prohibit employees’ discussion during an investigation only if it demonstrates that it has a legitimate and substantial business justification that outweighs the Section 7 right.”
A blanket policy prohibiting employees from discussing investigations in all cases was therefore invalid, the NLRB determined. Instead, employers must demonstrate “a particularized need for confidentiality in any given situation.” Such a need may arise where there are concerns regarding whether witnesses need special protection, evidence is in danger of being destroyed, or testimony is in danger of being fabricated.
In a footnote, the memo offered specific language to guide employers in drafting a legally sufficient policy. The first two sentences of Verso’s policy validly set forth the interest in protecting the integrity of investigations, the NLRB said. But to lawfully address confidentiality, the memo suggested changing the next two sentences to read:
“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.”
To read the NLRB’s advice memorandum to Verso Paper, click here.
Why it matters: Although the NLRB memo is not binding or precedential, it does offer meaningful guidance to employers, particularly in light of last year’s NLRB decision in Banner Health Systems and James A. Navarro. In that case, the Board held that a company violated the NLRA by imposing a blanket policy requiring confidentiality from all employees as a matter of course during internal investigations. The Verso Paper memo now provides model language for employers seeking to craft a legally permissible policy that will both express their interest in protecting the integrity of an employee investigation as well as the importance of confidentiality, determined on a case-by-case basis.