Over the last year, the National Labor Relations Board has been turning up the heat on employers who violate the National Labor Relations Act. Employers are scrambling to rewrite handbooks and policies that violate the NLRA, including blanket confidentiality provisions that keep employees from talking about the terms of their jobs.
A “blanket” confidentiality provision is one that tries to keep employees from talking about the terms and conditions of their jobs, issues such as pay, discipline, and mismanagement. Some employers have across-the-board provisions that say, for instance, that employees are not allowed to discuss internal investigations.
The NLRB has specifically said that these blanket confidentiality provisions violate Section 7 of the NLRA. Section 7 protects employees’ right to engage in “concerted activity” working together to improve their pay or working conditions.
In a recent case before the NLRB, an employee was interviewed as part of an internal investigation. The employer gave the employee a standard form asking that the employee keep his knowledge of the investigation confidential. He was later fired. The employee claimed that he was wrongfully discharged in violation of the NLRA.
Agreeing with the employee, the NLRB held that reasonable employees could have felt that they were prohibited from discussing the terms and conditions of their employment, in violation of Section 7. Section 7 is important because it allows employees to discuss aspects of their employment and to work together to unionize a workplace.
However, only blanket prohibitions are absolutely off limits. The NLRB has not taken the position that employers may never request confidentiality where internal investigations are concerned.
It’s important that employers consider this issue on a case-by-case basis and that they are able to explain why confidentiality is important for a given investigation or witness. Valid reasons for confidentiality might include witness protection, evidence preservation, or even the prevention of cover-ups.
While the NLRA applies to most employers, including those that are not unionized, a few are not covered by the Act. These include governmental agencies, agricultural employers, and employers who are covered by the Railway Labor Act. Contact Labor Law Office, APC today to speak with a professional Labor Law Attorney in Sacramento for more information.
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