NLRB Suggests Employee Handbook Language Concerning Confidentiality of Workplace Investigation

Faithful readers may recall that last August, the NRLB found that an employer violated §7 of the NLRA by directing employee-witnesses to maintain the confidentiality of their interviews during the pendency of a workplace investigation.   Then, at the end of January, the NLRB issued an “Advice Memorandum” concerning Verso Paper which found that an employer’s employee handbook provision was unlawful under the NLRA, but suggested revisions which would bring it into compliance.  (Rumor has it that the Memorandum may have been issued in January, but was not published until recently).    The Memorandum was issued by the NLRB’s Division of Advice (which advises the Board’s regional offices about proceeding with administrative proceedings and whose opinion does not carry as much weight as a Board or court decision).  The Division found the last two sentences of the following employee handbook to be overbroad: 

 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.

The Division found this “blanket rule” did not demonstrate a particularized need for confidentiality on a case-by-case basis as required by the NLRB.   Accordingly, the Division recommended that the regional office proceed to issue a complaint against the employer unless the parties were able to settle the dispute.  Nonetheless, the Division also concluded that the employee handbook policy could be lawful if the employer revised it to replace the last two sentences with the following language:

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.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.