In Banner Health Systems, the National Labor Relations Board ruled that an employer violates Section 7 of the National Labor Relations Act when it maintains a blanket policy that prohibits employees from discussing workplace investigations. Recently, however, the NLRB’s Division of Advice provided employers with a little breathing room when it comes to the typically important interest in preserving confidentiality in a workplace investigation.
The NLRB’s Division of Advice provides guidance to NLRB regional offices. Although its guidance does not carry the same legal weight as a Board decision, it is nonetheless influential. In a memorandum issued on April 16, 2013, Advice reviewed the following policy from Verso Paper’s 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.”
Advice found this policy unlawful. That is no surprise; the policy is clearly the type of blanket prohibition the Board condemned in Banner Health and simply maintaining it interferes with an employee’s protected right to discuss discipline investigations involving fellow employees. Yet Advice went one step further and offered that the employer’s policy would be lawful if it simply deleted the last two sentences and replaced them with the following:
“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 policy language offered by the Division of Advice serves two purposes. It provides employers with a model for legally acceptable policy language, at least in the eyes of the Division of Advice. It also reinforces the point the Board made in Banner Health that an employer’s interest in confidentiality must be balanced against an employee’s Section 7 right to engage in protected concerted activity. Both the Advice memo and Banner Health make it clear that in order to enforce a confidentiality policy an employer must establish in each particular investigation that there are specific facts that give rise “to a legitimate and substantial business justification for interference with the employees’ Section 7 right.” Such facts might include the need to protect witness identity, preserve evidence, or prevent the fabrication of evidence. Other facts may suffice depending on the circumstances.
Banner Health is currently on appeal to the U.S. Court of Appeals for the District of Columbia Circuit and its future is unknown at this time. For now, however, the Division of Advice has provided helpful guidance to employers who are wrestling with the challenges presented by Banner Health. We will continue to monitor this developing area of the law and will provide updates as necessary.