Employee Investigations and Confidentiality:
Employers have an obvious interest in keeping employee investigations confidential. It is common for employers to instruct employees participating in the investigation that they must keep matters related to the investigation confidential. However, the NLRB’s General Counsel’s Office recently released an advice memorandum in the case of Verso Paper stating that an employer’s policy categorically prohibiting employees from disclosing information about employee investigations is unlawfully overbroad and interferes with employees’ Section 7 Rights. In that same memorandum, the General Counsel provided an example of lawful confidentiality language that employers may use for policies and forms related to confidentiality in employee investigations.
Facts of Verso Paper Case:
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 a previous case, Banner Health System dba Banner Estrella Medical Center and James Navarro, Case 28-CA-023438, July 30, 2012. 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
Take Aways for Employers:
- Although this advice memorandum is not binding precedent from the panel (Board) heading the judicial functions of the NLRB, employers might consider shoring up policies regarding confidentiality and forms they use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.
Please contact the head of GDHM’s Employment Law group, Susan Burton, at [email protected] or 512.480.5738 for more information about employee investigations, or any other employment law related questions.
Notice: We are providing this client alert as a commentary on current legal issues, and it should not be considered legal advice, which depends on the facts of each situation. Receipt of this client alert does not establish an attorney-client relationship. The listed attorneys and / or other attorneys may provide services in connection with a particular matter.