By Fran Haas
The National Labor Relations Board ("NLRB") recently held that blanket provisions of employer policies that ask employees to keep internal investigations confidential violate the National Labor Relations Act ("Act"). This decision is consistent with the NLRB's emerging pattern of invalidating common (and sometimes long-held) employment policies on the grounds those policies violate employees' Section 7 rights under the Act.
The policy at issue in Banner Health Systems involved a routine request by a human resources officer to an employee to keep an internal investigation confidential and not discuss the investigation with co-workers. The employer explained that it applied this policy to all its internal investigations because confidentiality helped maintain the integrity of the investigations. The NLRB was unimpressed with this justification and found the blanket confidentiality provision infringed on the employee's right to engage in concerted activities under the Act, namely, an employee's right to discuss concerns about his supervisor's instructions, which the employee believed were improper.
The rule from this decision, that employers should avoid applying a blanket rule of confidentiality to its employees when conducting internal investigations, has a number of exceptions. The NLRB left open the possibility that employers may request employees to maintain the confidentiality of internal investigations when there is a "specific legitimate business justification." These justifications include the need to protect witnesses, avoid the destruction of evidence, prevent the fabrication of testimony, and avoid a cover-up. If an employer can show that any one of these justifications exist, blanket confidentiality of the investigation may be appropriate. Additionally, while not apparent from the NLRB's decision itself, the Act and the decision do not apply to management-level employees. Consequently, an employer's policy to request management maintain the confidentiality of internal investigations remains lawful.
The NLRB also complicated matters when it refused to distinguish between a "request" for confidentiality and "rule" for confidentiality. The NLRB reasoned that there is no meaningful distinction between the terms, even though employers frequently distinguish them. For instance, many employers inform employees in an investigation that, while they are not prevented from discussing an investigation with co-workers, discretion would be appreciated. The NLRB's decision calls this practice into question, and employers should take care when making "requests" or "suggestions" for confidentiality even if they are not understood to be "rules" for confidentiality.
At this point, employers should take heed of this recent development by the NLRB. Close examination of employee policies, handbooks, and forms, along with proper training for investigating employees, will go a long way to avoid running afoul of the NLRB's new decision. In the meantime, we will continue to follow the NLRB's decisions as this new rule develops.