In Verso Paper, the Division of Advice reviewed an employer's confidentiality rule and found it to be unlawfully overbroad. The rule was overbroad because it did not provided for confidentiality on a case by case basis consistent with the Board's ruling in Banner Health System, 358 NLRB No. 93(2012). To justify confidentiality, the Board in Banner Health held that an employer must show more than a generalized concern with protecting the integrity of its investigations. An employer must determine whether witnesses need protection; whether evidence is in danger of being destroyed; whether testimony is in danger of being fabricated; and whether there is a need to prevent a cover up.
In the advice memo, the first two sentences of the company's policy were determined to be lawful. The memo then set forth language that could be used to make the policy lawful. The new policy would read: Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep the evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover up. The advice memo would add: Verso may decide in some circumstances that in order to achieve these objectives, (employees) must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and (employees) do not maintain such confidentiality, (employees) may be subject to disciplinary action up to and including immediate termination.
It is apparent from the first two sentences of the policy that the employer was trying to incorporated the language of Banner Health. The "flaw", according to the advice memo, was the failure to avoid a blanket imposition of confidentiality of on all investigations.
So what are the types of investigations that warrant confidentiality? Certainly investigations that involve theft, misuse of confidential information, and harassment including sexual harassment can be justified in light of the need to maintain evidence and prevent testimony from being influenced or fabricated. As was noted in a Forbes article, the NLRB's position is contrary to the ABA 2009 "best practices" for internal investigations.
Until the Board's position on confidentiality is reviewed by a court of appeals, an employer should avoid the blanket imposition of confidentiality. An employer should nevertheless be able to justify the imposition of confidentiality in virtually all situations. The integrity of an investigation is paramount. Allegations of theft or sexual harassment are extremely serious. The damage caused by discussions and speculation are not easily undone when an investigation is finished.
The NLRB's emphasis of form over substance is an indication that it does not understand the challenges facing an employer in a difficult investigation. Fortunately, employers can and should establish the reasonableness of the need for confidentiality in investigations that truly warrant it.