NLRB General Counsel's Office Pans Blanket Confidentiality Rule; Suggests Language for Employee Investigation Documents | Practical Law

NLRB General Counsel's Office Pans Blanket Confidentiality Rule; Suggests Language for Employee Investigation Documents | Practical Law

The National Labor Relations Board (NLRB) recently released an advice memorandum dated January 29, 2013 stating that an employer's rule categorically prohibiting employees from disclosing information about employee investigations is unlawfully overbroad under the NLRB's decision in Banner Health.

NLRB General Counsel's Office Pans Blanket Confidentiality Rule; Suggests Language for Employee Investigation Documents

by PLC Labor & Employment
Published on 25 Apr 2013 • USA (National/Federal)
The National Labor Relations Board (NLRB) recently released an advice memorandum dated January 29, 2013 stating that an employer's rule categorically prohibiting employees from disclosing information about employee investigations is unlawfully overbroad under the NLRB's decision in Banner Health.
On April 24, 2013, the the NLRB's General Counsel's Office released an advice memorandum from January 29, 2013 stating that an employer's rule categorically prohibiting employees from disclosing information about employee investigations is unlawfully overbroad and interferes with employees' Section 7 Rights.
The employer, Verso Paper, maintained a confidentiality provision in its code of conduct stating that:
 
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 General Counsel's Office concluded that these blanket confidentiality requirements are unlawful under the NLRB's decision in Banner Health (see Legal Update, Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB). However, the General Counsel's Office also stated that:
  • The first two sentences setting out potential interests in confidentiality were lawful.
  • The unlawful provision could be remedied if the employer had employees acknowledge:
     
    [Employer] 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 [Employer] 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.
Although this advice memorandum is not binding precedent from the panel (Board) heading the judicial functions of the NLRB, employers might consider shoring up policies regarding confidentiality and forms they use during investigations to include:
  • Statements like those in the first two sentences of Verso's provision.
  • An employee acknowledgment similar to the one suggested by the General Counsel's Office.