Recently, the National Labor Relations Board (NLRB) found that the Boeing Company’s blanket confidentiality policy advising employees involved in investigations that Boeing “recommended” employees “refrain from discussing this case with any Boeing employee other than company representatives” was unlawful. Specifically, the NLRB found this policy impermissibly infringed on employees’ rights to discuss their employment terms and conditions and to engage in concerted protected activity under Section 7 of the National Labor Relations Act. The Boeing Company (NLRB 2015).
In its ruling, the NLRB stated that a blanket policy “recommending” confidentiality of investigations is similar to “requesting” confidentiality, and both are unlawful. The NLRB noted that whether a rule is unlawful “is not premised on mandatory phrasing, subjective impact, or even evidence of enforcement, but rather on the reasonable tendency of such a prohibition to coerce employees in the exercise of fundamental rights protected by the Act.”
According to this ruling, an employer’s generalized concern about protecting the integrity of all of its investigations is insufficient to justify this type of sweeping policy. Rather, in determining whether to mandate employee confidentiality of investigations, the employer must determine whether the particular circumstances of an investigation create legitimate concerns of witness intimidation or harassment, the destruction of evidence, or other misconduct tending to compromise the integrity of the inquiry—factors discussed in the NLRB’s 2012 Banner Health System decision. In other words, employers need to make a case-by-case analysis regarding employee confidentiality in investigations.