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NLRB Continues to Scrutinize Employer Confidentiality Policies During Human Resources Investigations

    In Boeing Co., 362 NLRB No. 195 (Aug. 27, 2015), the National Labor Relations Board found an Employer’s confidentiality policy for employees participating in Human Resources investigations to be unlawful under the National Labor Relations Act.  The Employer’s original policy required employees involved in Human Resources investigations to sign a confidentiality statement, which stated, among other things:  “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.”  The Board found that the policy violated Section 8(a)(1) of the NLRA because “such blanket confidentiality directives impermissibly infringe on employees’ statutory right to discuss among themselves their terms and conditions of employment and otherwise engage in concerted protected activity.”   After that finding, the Employer deleted the language “you are directed not to discuss this case” from the policy and replaced it with “we recommend that you refrain from discussing the case” with coworkers. The Board found the substituted language was virtually identical and therefore unlawful. The Board rejected the Employer’s argument that the substitution of “recommend” for “direct” cured the defects in the original notice. The Board held the language was a request for compliance with the Employer’s directive; that the Employer was not stating a mere “preference” for confidentiality; and, employees would not feel free to disregard the “recommendation” particularly where it was part of a formal policy and the Employer asked employees to sign the notice.  The Board also rejected the Employer’s business justification for the rule, holding that the Employer did not show that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, [or] there is a need to prevent a cover up.”  The Board reaffirmed that an employer is only free to require confidentiality where it determines that a corruption of its investigation would likely occur without confidentiality.  Here, the Employer did not do so, and therefore the Board held the policy to be unlawful.
    The decision is noteworthy as it highlights the tension between the rulings of the NLRB and an employer’s obligation to conduct a thorough investigation of harassment claims.  Employers must be careful not to require confidentiality during the course of human resources investigations unless they can establish a reason that the investigation would be tainted without it.


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