In a memorandum dated January 29, 2013, but made public on April 16, 2013, the NLRB's Office of General Counsel, while confirming that an employer's blanket confidentiality rule, which precludes employees from disclosing information about ongoing investigations into employee misconduct, is unlawfully overbroad under the Board's decision in Banner Health, 358 NLRB No. 93 (2012), held that an employer's policy may be lawful where it states that the employer will make an individualized determination of the need for confidentiality and that employees are required to honor the employer's decision.
The memorandum was issued regarding Verso Paper's Code of Conduct, which states in relevant part:
"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 Office of General Counsel concluded that because the policy purported to apply to every investigation, it ran afoul of Banner Health, which requires that an employer must show more than a generalized concern for the integrity of its investigations and must demonstrate a particularized need for confidentiality on a case-by-case basis. However, in a footnote, the Office of General Counsel stated that the first two sentences lawfully set forth the employer's interests, and suggested that the policy could be lawfully amended by striking the next two sentences and inserting the following language: "Verso 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 Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action."
The Advice Memorandum reaffirms that employers may not maintain blanket rules of confidentiality as to all investigations. Rather, employers must tell employees that confidentiality directives will only be issued in particular circumstances where the employer has determined it to be necessary. Accordingly, employers with confidentiality policies may wish to consider revising them to comply with this Advice Memorandum.