As you may know, in its Banner Health System decision issued in July 2012, the National Labor Relations Board found that the employer had violated the National Labor Relations Act by maintaining an overly broad rule requiring employees to maintain confidentiality during workplace investigations. Many employers and employer groups expressed concern that the inability to maintain such rules could hamper their investigations of sensitive subjects such as harassment in the workplace.
Earlier this week, the National Labor Relations Board issued an Advice Memo that helped to clarify its position on this matter. While an Advice Memo does not have the same precedential value as a decision of the Board itself, it does reflect the fact that General Counsel would not prosecute a case if the employer had followed the guidelines set forth in the Advice Memo. In Verso Paper, NLRB Div. of Advice, No. 30-CA-89350, 1/29/13 [Released 4/16/13], the General Counsel’s office found that Verso’s existing rule in its code of employee conduct set forth below was overly broad.
“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.”
As set forth in the Advice Memo, the above rule was found overly broad since it failed to meet the test set forth in Banner that requires the employer to demonstrate in each case that it has a legitimate and substantial business justification for confidentiality that outweighs employee rights under the National Labor Relations Act. The Advice Memo went on, however, to specifically suggest alternative language that would be in compliance with the Banner rule. The suggested revised language would replace the last two sentences of the rule set forth above with the following:
“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 up to and including immediate termination.”
In order to be able to lawfully enforce their confidentiality rules when the need arises, it is suggested that all employers review their existing rule and modify the language, if necessary, to mirror the NLRB’s suggested language. If you need further information regarding this topic, please contact us at Harmon & Davies.
This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
Tags: Confidentiality, NLRB
