NLRB Ruling is Problematic for Employer Workplace Investigation Policies
The National Labor Relations Board (“NLRB”) decided that an employer’s workplace investigations policy, which recommends employees keep an internal investigation confidential, violated the National Labor Relations Act (“NLRA”) because it interfered with employees’ rights to communicate regarding matters affecting terms and conditions of employment. The ruling creates a quandary for employers to maintain effective workplace investigation policies and practices including confidentiality statements in anti-harassment policies.
In The Boeing Co., 362 NLRB No. 195 (2015), the NLRB (the Federal government agency that administers the NLRA), adopted findings of an NLRB Administrative Law Judge, who found the Boeing Company’s policy containing the following language to be unlawful: “. . . Because of the sensitive nature of the information, you are directed not to discuss this case with any Boeing employee other than company employees who are investigating this issue or your union representative, if applicable. Doing so could impede the investigation and/or divulge confidential information to other employees.” Boeing had conducted numerous workplace investigations and argued to the NLRB that its policy was appropriate to avoid retaliation or harassment of witnesses, victims, and employees who the Company investigated and to deter employees from spreading unsubstantiated rumors. After the union filed an unfair labor practice charge to challenge the employer’s policy, Boeing issued a revised policy that “recommended” employees refrain from discussing matters under investigation, which the NLRB also found unlawful. The NLRB concluded that whether the policy contained a mandatory obligation or a recommendation, it nevertheless interfered with Section 7 of the NLRA, which gives both unionized and non-unionized employees the right to communicate amongst themselves regarding terms and conditions of employment for their mutual aid and protection (often referred to as “Section 7 rights”).
The NLRB ruling in The Boeing Co. case complicates an employer’s ability to maintain effective workplace investigation policies and procedures for legitimate reasons. For example, employers should be able to encourage employees to bring complaints to the employer’s attention to avoid discrimination, harassment, bullying, and other forms of workplace misconduct. Employers also legitimately seek to avoid retaliation against employees who raise workplace complaints or participate in their related investigations. Furthermore, employers have a legal and evidentiary need to preserve evidence — and avoid its destruction — related to a workplace investigation. However, according to the NLRB, an employer who maintains a policy that encourages employees involved in workplace investigations to maintain confidentiality also must balance the policy with employees’ Section 7 rights, and where its policy “recommends” employees not communicate about the investigation, it is likely unlawful because it does not reconcile these two interests.
The NLRB’s interpretation of confidentiality limits, as articulated in The Boeing Co., will present challenges for employers — union and non-union alike — to maintain adequate protections against unlawful retaliation and interference in workplace investigations. Employers should be aware of these challenges when crafting policies, such as those contained in employee handbooks and other pronouncements, seeking confidentiality needs for internal workplace investigations.
Gibbons Employment & Labor Law Department attorneys regularly handle workplace investigations, draft employment policies, and advise employers in related matters and litigation.