Employer confidentiality policies may be unlawful

By Stacey Mark
September 19, 2012

Earlier this year, the NLRB Office of General Counsel issued OM 12-59, its third memo on employer social media policies, addressing whether such policies violate an employee’s right under Section 7 of the National Labor Relations Act to engage in “concerted activities.”  At times the difference between what the NLRB concluded is and is not unlawful came down to wordsmithing.  For example, while it was permissible for an employer to suggest that employees address concerns through internal procedures, it was unlawful to say that employees are encouraged to use such resources rather than social media.  A particularly disconcerting issue for employers is the NLRB’s finding that a policy restricting the release of  "confidential information" about the company, co-workers or guests, and restricting sharing confidential information with co-workers, was unlawful.

On July 30, the NLRB issued an opinion in Banner Health System, also related to confidentiality, in connection with its investigation of an unfair labor practice charge.  The NLRB found that the employer violated employees’ rights under Section 7 by routinely asking employees who lodged a complaint not to discuss the matter with coworkers while the employer was investigating the complaint, so as to protect the integrity of the investigation.  The NLRB further stated that to impose such a restriction, the employer must first determine in each case whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.

Last month, a post on the One Mediation blog reported a crackdown on an employee confidentiality policy by the EEOC.  It stated that that the Buffalo, NY office of the EEOC issued a letter to an employer disapproving its written policy warning employees who participate in an internal investigation not to discuss the investigation, and stating that a violation of the policy may result in discipline.  It called the policy a “flagrant violation” of Title VII and itself an adverse employment action, because it interferes with the employee’s right to “oppose” discrimination.  The full text of the EEOC’s letter has not been published, but the blog reported that the case was believed to involve allegations of sexual harassment.

Given the prevalence of policies restricting the disclosure of confidential information and limiting discussion of internal complaints of harassment or discrimination, employers should consider reviewing their employment policies with counsel to see what risks are present and whether any changes are necessary.

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