On July 30, 2012, the National Labor Relations Board (NLRB) issued its decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012), holding that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct. In Banner Health, the Board rejected the employer's argument that the confidentiality instruction was necessary to protect the integrity of its investigations and found the employer's "generalized concern" insufficient to outweigh employees' rights under Section 7 of the National Labor Relations Act. Instead, the Board concluded, in every investigation, an employer must identify a specific need to protect witnesses, avoid spoliation of evidence or fabrication of testimony, or prevent a cover-up, before instructing employees to maintain confidentiality. Consequently, in the Board’s view, the blanket confidentiality instruction at issue in Banner Health violated the Act.
Now, eight months later, the NLRB’s Division of Advice released a Memorandum containing a sample confidentiality policy that would seemingly avoid the Section 7 conflict, Verso Paper, NLRB Div. of Advice, No. 30-CA-089350 (Jan. 29, 2013). The Memorandum, which was issued in January but just recently released to the public, analyzes the following confidentiality policy covering employees at paper mills throughout the country:
[The Company] has a compelling interest in protecting the integrity of its investigations. In every investigation, [the Company] 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 [the Company] 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 of Advice determined, based upon Banner Health, that the confidentiality policy was “overbroad because the Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” Notably, the Division of Advice suggested language that would render the overbroad confidentiality policy acceptable in its view. The Division expressly stated that the first two sentences in the employer’s policy were appropriate, and explained that the remaining portion of the rule could be modified, consistent with Banner Health, to lawfully advise that:[The Company] 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 [the Company] 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.
While recognizing that the Advice Memorandum does not have the legal effect of a Board decision, it at least provides a sanctioned viewpoint on acceptable confidentiality rules and can be persuasive when dealing with Regional offices, and even the Board in the absence of other guiding materials. At a minimum, the Advice Memorandum signals that the General Counsel would not prosecute a case where the employer used the suggested confidentiality language. Such insight provides useful guidance for employers who are trying to determine the correct confidentiality protocols and policy language in light of the Board’s Banner Health decision. An important final point – the Advice Memorandum recommended that a Complaint be issued because the overbroad confidentiality provision “does not take into account the Employer’s burden to show in each particular situation that the Employer has a business justification for confidentiality that outweighs employees’ Section 7 rights.” Thus, as set forth in Banner Health, the Board will scrutinize whether the employer can demonstrate a particularized and sufficient need for a confidentiality instruction in each investigation. Consequently employers should consider, as we previously explained in our ASAP on Banner Health, eliminating global prohibitions on employee discussions of internal investigations in favor of language indicating that confidentiality may be necessary under certain circumstances, and training those employees charged with conducting internal investigations on circumstances warranting a confidentiality instruction, how to tailor those instructions, and how to proceed with investigations in the absence of confidentiality protections. Editor’s note: This article was written by guest author Tracy Stott Pyles, Shareholder, Littler Mendelson P.C., Columbus, OH, and reprinted with permission. Ms. Pyles can be reached at (614) 463-4221 or tpyles@littler.com.