For years, attorneys have urged employers conducting HR and other workplace investigations to make the employees they interview swear to keep the conversation confidential. Witnesses, the lawyers advise, should tell no one what they were asked or what they said—at least until the investigation is concluded.
The idea is that the investigation might become tainted if witnesses discuss what was said.
Now, the National Labor Relations Board (NLRB) has thrown that conventional wisdom out the window.
In a recent case, it concluded that a confidentiality clause used by aerospace company Boeing violated employees’ rights to engage in concerted activity under the National Labor Relations Act (NLRA). Boeing’s policy prohibited employees from discussing pending investigations. Instead, they were supposed to refer all questions to the HR professional conducting the investigation.
The policy banned employees from discussing investigations with anyone, “other than company employees who are investigating this issue or your union representative.”
The NLRB concluded that the policy was far too broad and prevented employees from participating in so-called concerted activity by effectively issuing a gag order. The NLRB said any confidentiality policy must be tailored to minimize its effect on concerted activity.
Boeing asked if making the rule a recommendation would pass muster. The proposed recommendation still required employees to sign a confidentiality notice and still urged them not to discuss the investigation. The NLRB said that wasn’t good enough.
What should employers do?
First, check your handbook for any confidentiality policies. Does your rule prohibit discussing working conditions and salary? Are employees told they can’t discuss sexual harassment, discrimination or other investigations in which they are participating? All those are now red flags for an unfair labor practices charge. Have your attorney review your policy.