This summer, the National Labor Relations Board (“NLRB”) highlighted its position that confidentiality rules and at-will employment disclaimers routinely promulgated by employers may violate the federal labor law.  The NLRB held that a generalized directive to employees not to discuss matters under investigation with co-workers interfered with the National Labor Relations Act (“NLRA”).  The NLRB also said that at-will employment disclaimers that acknowledge that no written or oral statements can alter that employment relationship violate the NLRA.  The NLRA gives employees the right to engage in “protected concerted activity” for their mutual aid and protection, which includes co-workers discussing amongst themselves the terms and conditions of their employment.

In Banner Health, the NLRB held that the employer violated the federal labor law by instructing a witness not to discuss the subject matter of an ongoing internal investigation.  The NLRB ruled that the employer’s “generalized concern with protecting the integrity of its investigation” as the basis for the requested confidentiality did not outweigh the employees’ protected right to discuss workplace matters with co-workers.  The NLRB did say that employers may lawfully prohibit employees from discussing an ongoing investigation if they can demonstrate a legitimate business need for confidentiality.  To meet this legitimiate business need, the employer must show that specific witnesses need protection, that evidence is in danger of being destroyed, and/or that the confidentiality instruction is needed to prevent a cover-up.  If one of these needs is not met, the NLRB will likely find that the employer infringed upon employees’ rights under the NLRA.

On June 11, 2012, NLRB Acting General Counsel, Lafe Solomon, addressed the Connecticut Bar Association discussing the NLRB’s position on at-will employment provisions contained in employer’s handbooks.  Earlier this year, the Phoenix branch of the NLRB brought a complaint against the American Red Cross in Arizona alleging, among other things, that the at-will provision in its employee handbook violated the federal labor law.  The language was as follows:

I understand my employment is “at will.” This means I am free to separate my employment at any time, for any reason, and [the company] has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status except for a written statement signed by me and either [the company’s] Executive Vice-President/Chief Operating Officer or [the company’s] President.

In the case, American Red Cross Arizona, 28-CA-23443 (Feb. 1, 2012), an administrative law judge for the NLRB found the provision to be unlawful because it “premise[d] employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship,” and therefore restricted employees’ NLRA rights.

When asked if he agreed with the position taken by the Phoenix branch of NLRB, Solomon said that the NRLA would not be violated if an employer merely tells its employees that they are employed at will.  However, he said the remaining portion of the statement was wrong because it did not acknowledge that if employees are unionized and a collective bargaining agreement is agreed to, it may have a “just cause” for limiting the at-will status of employees.  Solomon also faulted the language for implying “the futility of unionization.”  It is unclear whether the NLRB’s position would be upheld in a federal court.