NLRB Offers Guidelines on Confidential Investigations

By former Associate Ethan Don

On April 16, 2013, the National Labor Relations Board (NLRB) released an Advice Memorandum with regard to confidential investigations and employees’ rights under Section 7 of the National Labor Relations Act (NLRA). In October 2012, we previously reported on the NLRB’s unprecedented decision in Banner Health Systems, that commonly conducted confidential internal investigations violate employees’ Section 7 rights. That section generally protects both unionized and non-unionized employees’ rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

In the NLRB’s recent Advice Memorandum, the Employer, Verso Paper, had a policy which stated:

“[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] 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 [Employer] 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 NLRB concluded that the language in the employer’s policy constituted a blanket rule prohibiting employee’s from discussing ongoing investigations and that it therefore chilled Section 7 rights to discuss discipline or disciplinary investigations of employees. Because the employer has the burden to show a business justification for confidentiality that outweighs Section 7 rights in each investigation, a blanket rule is not permissible.

The NLRB, however, specifically stated that the first two sentences of the policy “lawfully sets forth the Employer’s interest in protecting the integrity of its investigations.” It is even more significant that, rather than just finding the policy overbroad, the NLRB actually provided specific modifications to the policy which it would have found lawful. Specifically, it proposed the following language to replace the last two sentences of the employer’s policy:

“[Employer] 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 [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

The take-away here is that the NLRB is providing direct guidelines for language and supporting actions it will find lawful. The policies should be circumstance-specific and the employer should take care to analyze and document as necessary the bases for a decision to require strict confidence.

This presents a great opportunity for employers to review their policies and revise them accordingly. There are, unfortunately, two caveats to making changes. The first is that this is an “Advice Memorandum,” which is less authoritative than an NLRB Decision. The second is that the EEOC may take a difference stance under Title VII.