By:  Kamran Mirrafati, Esq.

The NLRB Division of Advice recently issued a Memorandum finding that an employer’s confidentiality rule violated Section 8(a)(1) by precluding discussions about ongoing investigations into employee misconduct.  However, in reaching this decision, the Associate General Counsel proposed language that it would consider to be lawful.  [See Verso Paper, NLRB Div. of Advice, No. 30-CA-89350, January 29, 2013 (released April 16, 2013).]

 The NLRB has held that an employer violates the National Labor Relations Act if it maintains a work rule that chills employee Section 7 rights.  One such right is the employee’s ability to discuss discipline or disciplinary investigations involving fellow employees.  

 An employer may only prohibit discussions regarding ongoing investigations if it demonstrates that it has a legitimate and substantial business justification that outweighs the Section 7 right.  More specifically, the employer must “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, and there [was] a need to prevent a cover up.”  See Banner Estrella Medical Center, 358 NLRB No. 93 at p. 2 (2012) (citing Hyundai America Shipping Agency, 357 NLRB No. 80 at p. 15 (2011)).  Thus, a blanket rule prohibiting employee discussions of ongoing investigations would be invalid because it would not take into account a particularized need for confidentiality on a case-by-case basis.

 Although a blanket rule prohibiting discussions would be prohibited, the Associate General Counsel indicated that an employer could comply with the NLRA if it has a policy that complies with Banner Estrella.  The following proposed language would be lawful according to the Division of Advice:

 [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.  [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 you do not maintain such confidentiality, you may be subject to disciplinary action up to and including immediate termination.

Even with such a compliant policy, given the current Board’s view of the legal requirments, employers must be careful to only impose a confidentiality requirement where the investigation presents specific facts giving rise to a legitimate and substantial business justification for interference with Section 7.