MORE SPOOKY NEWS FOR EMPLOYERS FROM THE NLRB: National Labor Relations Board Limits the Confidentiality of Workplace Investigations
Employers may have to think twice about requiring, or even requesting, employee confidentiality during employee investigations, following a recent ruling by the National Labor Relations Board.
Section 7 of the National Labor Relations Act (the “NLRA”) guarantees most private-sector employees—both union and non-union—the right to organize and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 of the NLRA protects employees’ rights to discuss their wages, hours, and other terms and conditions of employment, and Section 8(a)(1) makes it unlawful for an employer to interfere with or restrain its employees’ exercise of these rights.
The National Labor Relations Board, the entity that enforces the NLRA, has historically taken a broad view of what constitutes protected “concerted activity” under Section 7.
On July 30, 2012, the Board expanded that view even further, ruling that an employer’s policy of routinely asking employees not to discuss ongoing internal investigations with their co-workers was unlawful, even where the employer did not threaten to take disciplinary action if the employee breached confidentiality. According to the Board, an employer’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights.” The Board concluded that the employer should have first made a determination that it needed to request or require confidentiality because it had “a legitimate business justification that outweigh[ed] employees’ Section 7 rights.” The Board suggested that circumstances that would justify an instruction to employees to maintain confidentiality might include whether:
- witnesses needed protection;
- evidence was in danger of being destroyed;
- testimony was in danger of being fabricated; and/or
- there was a need to prevent a cover up.
This decision complicates matters for employers conducting internal investigations, which still have a duty to protect the confidentiality of employee complaints to the extent possible, according to the EEOC.
So what is the solution for employers?
Based on the Board’s July 30th decision, employers should no longer have a blanket policy prohibiting employees from discussing employee investigations. Instead, when the need for an investigation arises, employers should require or request confidentiality only after they have documented up-front, on a case-by-case basis, the specific factors that justify why any confidentiality directives or requests were given. Employers should also review their investigation policies and consult with employment law counsel as to whether such policies should be revised in order to set forth which factors will be taken into account when considering whether confidentiality is appropriate in an investigation (such as whether the complaining party requests confidentiality, whether confidentiality is needed to protect witnesses, evidence, or testimony, etc.).
The Board continues to be very active in issuing decisions that affect all employers, including non-unionized employers. All employers should be aware of the protections given to employees who engage in protected “concerted activity” by the NLRA—whether it be in the context of employee investigations, use of social media, or complaints to supervisors about the workplace.
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