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NLRB Cracks Down on Internal Investigations by Employers

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In its ever-creeping reach into employers’ rights and privileges, the National Labor Relations Board (NLRB) has recently found that employer confidentiality mandates in internal investigations, and even recommendations, are not permissible.

The ruling comes from a case involving the Boeing Company, in which the company’s policy that employees involved in HR investigations refrain from discussing these activities was found to be unlawful and violated the employees’ rights to engage in concerted activity under Section 7 of the National Labor Relations Act (NLRA).

The case against Boeing arose from an HR complaint filed by an employee against her supervisor. Boeing had the employee sign a confidentiality notice that specifically directed witnesses not to discuss the investigation or complaint with any other employee or the witness’s union representative, if applicable. After the employee received a report that found her complaint unsubstantiated, she discussed the report with her coworkers. A short time thereafter the employee received a written reprimand for breaching the confidentiality notice.

The employee responded by filing a complaint against Boeing for violating her Section 7 rights under the NLRA. Boeing in turn rescinded the reprimand and changed its policy from required, to “recommended.”

The Board found that the revised policy presented no actual change to the policy because the employer continued to clearly communicate its desire for confidentiality and requested the employees sign a notice regarding confidentiality. The NLRB determined that the Boeing policy regarding confidential investigations, even though revised, violated the NLRA and effectively chilled employees’ exercise of their Section 7 rights.

In light of this decision, employers can still legally require employees to keep trade secrets and legally protected information confidential, but all bets are off regarding confidentiality with internal investigations and the like. Employers should remove any sweeping confidentiality policies from their handbooks and guidelines. Instead, they should assure all employees that they will handle all investigations with discretion and will preserve the confidentiality of all involved persons to the extent possible. The bottom line – an employer can still control the information it relays, just not what other involved employees communicate.

Hilary Atkins

Posted In: Legal

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