Recently, the National Labor Relations Board (NLRB) held that Employers should avoid blanket requests for employees to maintain confidentiality in the workplace during internal investigations (In Banner Estrella Medical Center).
Initially, businesses were forewarned that they should be careful to maintain the confidentiality of an investigation of alleged misconduct, so as to protect the subject of the investigation and the witnesses until there was a final determination. This necessarily required them to inform other employees who were involved in the investigation to keep the discussions conducted with them confidential. It is apparent why this was requested, and indeed required.
The NLRB ruling now requires businesses to justify this confidentiality, without which they will be held to have violated Section 8(a)(1) of the NLRB Act.
In my opinion, this is the kind of dilemma that companies face when there is overregulation.
This kind of regulation creates an almost impossible balancing act that employers have to engage in order to comply with the litany of regulations. It’s like walking a tightrope. Under these circumstances, even the well-intentioned can make a misstep because the line is so fine, and generally drawn without a lot of guidance as to its scope and implementation.
The justifications listed in the NLRB decision to warrant requiring employee confidentiality are so apparent as to fly in the face of reason for re-stating them¹.
Is it a wonder that new businesses find it nearly impossible to emerge, while middle market businesses struggle to sustain. The costs involved in compliance and the additional layering of overhead departments and personnel that don’t add any significant benefit to the value proposition being traded in the market place by the companies affected are killing American ingenuity and the American economy. It’s no wonder that other countries are leading the way in product production and market penetration.