The NLRB Requires "A Legitimate and Substantial Justification" for Employer Confidentiality Requests

by Miller & Martin PLLC

In its latest stroll through non-unionized employers' backyards, the NLRB has overturned one of its own Administrative Law Judge's (ALJ's) rulings concerning an employer's routine request that the employees involved in internal investigations keep the information they possess about the same confidential/not to discuss it with others, particularly while the investigation is ongoing.
A pretty routine request right?  The ALJ thought so by upholding the same.
The NLRB, however, found that making such requests "on a routine basis" was a violation of employees' Section 7 (of the National Labor Relations Act) rights.
The Board's rationale for this decision was that the employer's "generalized concern" with protecting the integrity of its investigations was insufficient to outweigh employees' Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the employer's burden "to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up." The employer's blanket approach clearly failed to meet these requirements. "Accordingly, we find that the [employer], by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct, violated Section 8(a)(1) of the Act." Banner Health System , 358 NLRB No. 93 (July 30, 2012).
Impact on Employers
What this decision means for employers is that rather than merely having a blanket general rule that all employees involved in any type of internal investigation whatsoever will be asked to keep the information they possess about the same "confidential/do not share it with others," they will instead need to analyze the circumstances surrounding each investigation and make a case-by-case determination as to whether or not there is a "legitimate and substantial need to request confidentiality here?"
Since this decision is brand new and was issued in the context of challenging a "blanket rule" rather than considering whether the employer's particular justification for confidentiality was warranted or not, the Board has not offered very much guidance as to what it will be looking for with regard to meeting this standard.
So, for now, employers are urged to rely on a common-sense approach – and again – to be able to show (through, you guessed it! "documentation") why they have chosen to request that employees keep the information they possess as part of an ongoing investigation confidential.
A few examples could be (1) "because we could not tell at the beginning of the investigation who all might be involved in this suspected theft, drug use ring, etc." or (2) "the harassment complaint involved the team leader or supervisor, and we did not want those involved to be worried about the information they share being 'leaked back to the boss'" or (3) "the employees involved are all very close – if permitted to 'share and thereby coordinate their stories' we may never know what really happened." Even something as simple as "some of these events happened a long time ago, and if employees start discussing them among themselves, their own memories may be falsely 'refreshed' by things others witnessed but that they really have no independent knowledge of" could serve as sufficient support for a confidentiality request. The fact that criminal behavior may be at issue could provide such grounds as well.
Note that nothing in the Board's decision prohibits employers from assuring employees that information shared with HR, etc. as part of an internal investigation will be kept as confidential as possible. All the Board has precluded at this point are blanket rules requesting that employees NOT TELL EACH OTHER what they know concerning an ongoing investigation.
We will, of course, keep you updated in the event this latest decision is overturned on appeal.  In the meantime, if you have any questions regarding conducting internal investigations or any other labor or employment law topic, please feel free to contact Bill Trumpeter, or any other member of our Labor and Employment law practice group.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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