Last year, the NLRB issued a controversial decision in Banner Health System, 358 N.L.R.B. No. 93 (2012), finding that an employer violated the NLRA by prohibiting employees from discussing ongoing investigations of employee misconduct. The NLRB found that “[t]o justify a prohibition on an employee discussion of on-going investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.” Section 7 rights are those that entitle employees to engage in, or refrain from engaging in, protected, concerted activity, like union organizing.
In the wake of this decision, the NLRB’s Division of Advice recently released a memorandum (pdf), issued earlier this year, regarding whether an employer’s confidentiality rule precluding employee disclosure of information about ongoing investigations unlawfully interferes with employees’ Section 7 rights. In Verso Paper, No. 30-CA-089350 (2013), the employer had a Code of Conduct that prohibited employees from discussing ongoing investigations. The confidentiality provision stated:
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.
Consistent with Banner Health, the Division of Advice found that an employer violates the NLRA when it maintains a blanket rule regarding the confidentiality of employee investigations. An employer may only prohibit employees’ discussions during an investigation if it demonstrates that it has a legitimate and substantial business justification that outweighs the Section 7 right.
The Division of Advice instructed that the employer could comply with the NLRA by deleting the last two sentences of the above provision and replacing them with the following language:
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.
Labor professionals should examine their existing policies and, if those policies could be interpreted as imposing a blanket prohibition on disclosure, consider whether language similar to the above is appropriate in their circumstances.