*By Patrick J. Hoban
All employers know that many employees who have claims of workplace harassment and/or discrimination want assurances that their complaints and the employer’s investigations will be kept confidential. In its ongoing war on longstanding employment practices and as a continuation of its radical re-interpretation of the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) has further muddied the waters for employers.
The NLRB General Counsel (“GC”) recently released an advice memorandum reiterating the NLRB’s position that an employer’s blanket rule enforcing the confidentiality of employee investigations violates the NLRA. The memorandum, issued in Verso Paper, NLRB Case No. 30-CA-089350, states that an employer may only lawfully discipline employees for divulging information related to a workplace investigation if the employer demonstrates “a legitimate and substantial business justification” for “interfering with” employees’ rights under Section 7 of the NLRA.
Verso Paper maintained a “Code of Conduct” which, among other things, prohibited employees from discussing ongoing investigations. The policy required employees to “maintain the investigation and [their] role in it in strict confidence.” The Policy further stated that employees who breached this prohibition “may be subject to disciplinary action up to and including termination.”
The GC concluded that this rule was overbroad and violated the NLRA. Because Section 7 grants employees the right to discuss discipline or disciplinary investigations involving their fellow employees, the GC reasoned that this prohibition infringed upon employee rights. As a result, employers may only lawfully restrict employee communications concerning workplace investigations if they demonstrate the need to maintain confidentiality on a case-by-case basis. The GC explained that an “[e]mployer may not avoid this burden by asserting its need to protect the integrity of every investigation, but rather must establish this need in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification for interference with the employees’ Section 7 right.”
This advice memorandum is the NLRB’s clearest statement that employer policies which require employees to keep their knowledge of and participation in workplace investigations confidential under threat of discipline run afoul of the NLRA. Strangely, the NLRB’s policy is at odds with guidance from the Equal Employment Opportunity Commission (“EEOC”) requiring employers to take steps to assure employees who complain of workplace harassment and/or discrimination that their complaints will be handled confidentially.
In light of the NLRB’s position, and until a court rules on its legitimacy, employers should review blanket confidentiality policies and must prepare to justify enforcing confidentiality requirements concerning workplace investigations if challenged. At the same time, employers must also continue to ensure that employees who complain of workplace harassment and/or discrimination are assured that their confidential information will be protected.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
