Employers, union and non-union alike, have been spinning their wheels every time the NLRB comes out with a new case, general counsel memorandum or advice memorandum slamming a generally accepted employment policy. This past year, we have seen the NLRB take on social media policies, collective action waivers, at-will disclaimers and confidentiality rules. This time, the NLRB has provided “approved” language for a confidentiality rule in response to its Banner Health ruling in July that invalidated an employer’s blanket confidentiality rule and required instead a case-by-case analysis on whether employers can instruct employee-witnesses to not discuss the subject matter of an ongoing internal investigation. See Employers Beware: NLRB Says Your Confidentiality Rules And At-Will Employment Disclaimers May Violate The Law.
In its Advice Memorandum, the NLRB found that the employer, Verso Paper, had an overly broad confidentiality rule because it prohibited employees from discussing any ongoing investigation. This, the NLRB said, could reasonably chill employees in the exercise of their Section 7 Rights, which includes discussing working conditions. The NLRB reiterated its position in Banner Health that for an investigation to be confidential an employer must make a case-by-case determination that employee-witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated or there is a need to prevent a cover up. The NLRB provided a modification of Verso Paper’s confidentiality rule that would comply with the law:
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.
Manna from heaven? Not exactly but thank you, NLRB, for some specific direction on drafting lawful employment policies.