{"id":284,"date":"2015-09-09T16:10:36","date_gmt":"2015-09-09T21:10:36","guid":{"rendered":"http:\/\/lindner-marsack.com\/news\/?p=284"},"modified":"2015-09-09T16:10:36","modified_gmt":"2015-09-09T21:10:36","slug":"nlrb-strikes-another-employer-confidentiality-policy","status":"publish","type":"post","link":"https:\/\/lindner-marsack.com\/news\/nlrb-strikes-another-employer-confidentiality-policy","title":{"rendered":"NLRB STRIKES ANOTHER EMPLOYER CONFIDENTIALITY POLICY"},"content":{"rendered":"

By: Daniel Finerty<\/p>\n

On August 27, 2015, the National Labor Relations Board (Board) invalidated an employer\u2019s confidentiality policy that was in place to maintain the integrity of its internal investigations. The Board determined both the original and revised confidentiality policies used by the Boeing Company unlawfully restrained employee rights to discuss the terms and conditions of their work and to engage in protected concerted activities under the National Labor Relations Act. However, the Board\u2019s decision has clarified the muddy waters surrounding the effective use of confidentiality policies during internal investigations into sexual harassment, workplace threats and other employee misconduct.<\/p>\n

Boeing\u2019s original policy identified its interest in protecting the confidentiality of an internal investigation. It explained that such investigations typically dealt with \u201csensitive information and may be conducted under authorization of the Boeing Law Department.\u201d As a result, the policy directed employees \u201cnot to discuss this case with any Boeing employee other than company employees who are investigating this issue or your union representative, if applicable.\u201d The Board ruled that this policy potentially restrained employee speech. The Board rejected Boeing\u2019s justifications, that the protected witnesses, victims, or employees from retaliation, harassment and rumors.<\/p>\n

The Board also rejected Boeing\u2019s revised confidentiality policy. In the revised policy, Boeing recommended that employees refrain from discussing an investigation. This slight change did not cure the Board\u2019s initial concerns. Even the revised policy reasonably tended to inhibit employees\u2019 rights to engage in activity protected by the NLRA.<\/p>\n

A blanket confidentiality policy is unlikely to survive Board scrutiny regardless of whether or not it carves out discussions with a union representative. The Board has reaffirmed its position that \u201c[e]mployees have a Section 7 right to discuss employer investigations with their coworkers.\u201d To comply with the Board\u2019s recent decisions, while protecting employees involved in an investigation, employer\u2019s may want to consider:<\/p>\n