Many employers’ employee handbooks contain policies regarding how investigations of possible employee misconduct will be handled. These policies regularly include admonishments to employees about maintaining the confidentiality of the investigation. What many employers do not consider when creating these policies is their implication of Section 7 of the National Labor Relations Act and protected concerted activity.
However, the NLRB is considering the implications of these confidentiality policies for you. The unaware employer, unionized or not, may soon find themselves before the NLRB facing an unfair labor practice charge.
In Banner Health, 358 NLRB No. 93 (2012), the National Labor Relations Board held that a blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation. Thus, an 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.”
Since Banner Health, employers have been struggling to find appropriate wording for their investigations policy that will satisfy the NLRB, while at the same time letting employees know that confidentiality during an investigation is a possibility. In an effort to assist employers with this issue the NLRB has recently received a helpful decision from the NLRB’s Division of Advice.
The decision follows a union filed unfair labor practice charge at a Regional Office of the Board against an employer, alleging the employer’s investigations policy was unlawful. Following investigation of the charge, the Regional Office asked the NLRB’s Division of Advice for an opinion whether or not to issue a complaint.
The Division of Advice found this policy unlawful. These days that is not a big surprise. The investigations policy is precisely the type of blanket prohibition the Board rejected in Banner Health. The NRLB will likely find that unqualified prohibitions interfere with an employee’s protected right to discuss discipline investigations involving fellow employees.
However, the Division of Advice didn’t stop with their reaffirmation of the general rule in Banner Health. The Division went on to provide employers with the guidance they have been waiting for regarding the rewording of their investigations policy. The Division set forth the following standard for a lawful investigations policy:
[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 we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
The Division of Advice even went one step further and offered that the employer’s policy at issue in Verso would be lawful if it simply deleted the last two sentences of their policy and replaced them 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.”
Division of Advice decisions are not binding on the five-member NLRB. However, those decisions typically weigh heavily in regional officials’ decisions to issue unfair labor practice complaints (or dismiss charges).
The policy language offered by the Division of Advice serves two purposes. It provides employers with a model for legally acceptable policy language, at least in the eyes of the Division of Advice. In many instances, an employer that adopts a policy consistent with the rule set forth above, is much less likely to face a complaint from a Regional Office. It also reinforces the point the Board made in Banner Health that an employer’s interest in confidentiality must be balanced against an employee’s Section 7 right to engage in protected concerted activity.
Both the advice memo and Banner Health make it clear that in order to enforce a confidentiality policy an employer must establish in each particular investigation that there are specific facts that give rise “to a legitimate and substantial business justification for interference with the employees’ Section 7 right.” Such facts might include the need to protect witness identity, preserve evidence, or prevent the fabrication of evidence. Other facts may suffice depending on the circumstances.
Banner Health is currently on appeal to the U.S. Court of Appeals for the District of Columbia Circuit and its future is unknown at this time. For now, however, the Division of Advice has provided guidance to employers who are currently looking at their investigation policies to address the challenges presented by Banner Health. If you have any questions about your policies and how they may need to be modified, please contact your Weintraub Tobin attorney.