The National Labor Relations Board (NLRB) continues to call into question standard employer practices. Early this month, we told you about an NLRB ruling that an employer violated the National Labor Relations Act (NLRA) by including a fairly standard disclaimer in its employee handbook. This ruling was not an aberration, but rather is part of a trend at the NLRB to find unfair labor practices in policies and procedures employers have long considered legitimate and proper.

Confidentiality of internal investigations. For example, many employers follow the Equal Employment Opportunity Commission’s (EEOC) long-standing guidance and attempt to maintain the confidentiality of employees in harassment investigations (Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors).

Although employers should not guarantee victims or witnesses complete confidentiality, an employer’s assurance that participation in an investigation will be kept confidential to the extent possible may encourage employees to be forthcoming in what can be very difficult circumstances. With this in mind, many employers ask those interviewed during investigations of harassment to refrain from discussing the specifics of their interview.

However, last year, the NLRB found an employer violated employee’s Section 7 rights when it promulgated a rule prohibiting employees from discussing ongoing workplace investigations. Section 7 of the NLRA guarantees employees (whether unionized or not) the right to engage in protected concerted activities regarding the terms and conditions of employment.

The employer argued that it had a legitimate business reason for requesting confidentiality. Specifically, the employer sought to protect possible victims, witnesses, and an accused sexual harasser. The employer also pointed out that its request for confidentiality was consistent with EEOC guidelines.

The NLRB rejected the employer’s argument, finding that it did not meet its burden of demonstrating a legitimate and substantial justification, because it did not determine whether confidentiality was actually required in this case. Rather, it applied a blanket rule against discussing all internal investigations (Hyundai America Shipping Agency, Inc., 357 NLRB No. 80 (2011).

The NLRB has now gone a step further, ruling that an employer violated the NLRA when it asked employees to refrain from discussing an ongoing internal investigation in order to preserve the integrity of the investigation (Banner Health System, 358 NLRB No. 93 (2012)). The employer did not threaten discipline or discharge if an employee failed to adhere to this request.

The Board ruled that the employer’s “generalized concern” for the integrity of the investigation was insufficient to overcome the impact on employees’ Section 7 rights. Even though the employer did not have a written rule on the issue and merely requested confidentiality, the Board ruled it should have followed Hyundai America Shipping, and first considered whether any witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover-up. A routine request to refrain from discussing an internal investigation was unsatisfactory; an individualized assessment needed to be made.

Read the follow-up article: NLRB’s stance on employees’ off-duty access to the workplace.

Patricia M. Trainor, JD, SPHR is Managing Editor of BLR’s human resources and employment law publications. Ms. Trainor has several years of experience representing employers and school districts in labor and employment matters. As an associate at Franczek Sullivan, P.C. in Chicago, she represented employers in state and federal court and before the Illinois Human Rights Commission. Before entering private practice, Ms. Trainor clerked for the Honorable Anthony Scariano at the Illinois Appellate Court. Ms. Trainor received her law degree magna cum laude from Loyola University Law School of Chicago. She has a Masters Degree in Mass Communication from San Diego State University. Additionally, Ms. Trainor is certified as a Senior Professional in Human Resources (SPHR) by the national Human Resources Certification Institute. She is a member of the American Bar Association, the Connecticut Bar Association, and the Illinois Bar Association, and she is admitted to practice in Connecticut and Illinois.

Follow Patricia Trainor on Google+