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Legal Q&A on Confidentiality Policies

Question – Can an Employer maintain a Confidentiality Policy that explicitly directs employees not to discuss coworkers’ “private employee information,” such as salaries, disciplinary action, etc., unless the information was “shared by the employee” whose information is being discussed?

Answer – The U.S. Court of Appeals for the D.C. Circuit recently upheld a determination by the National Labor Relations Board that such a policy violates the National Labor Relations Act. The Court ruled that the policy unlawfully barred the employees from sharing information at the heart of labor law’s concern: information about salaries and employee discipline.

The Court said the policy was not salvaged by its safe harbor allowing employees to discuss information about salaries and discipline when “shared by the employee” whom the information concerned.

The Court stated that the NLRB has recognized that restricting employees’ “use of information innocently obtained” interferes with Section 7 rights. The Court also noted that the information could be leaked inadvertently, such as by leaving a pay stub on the photocopier.

Question – Employers are usually concerned about maintaining confidentiality when conducting sexual harassment, hostile work environment, and suspicion of abuse investigations. The need for confidentiality is paramount in these types of cases. Can an Employer have a policy that, categorically, requires confidentiality when conducting these types of investigations?

Answer – The NLRB rule is that such investigative non-disclosure policies may only be applied on a “case-by-case basis,” following a threshold determination that confidentiality is necessary to the particular investigation.

For example, the NLRB would invalidate a rule that mandated confidentiality in every investigation of claims of sexual harassment. Rather, the NLRB says you must first make an independent threshold determination that confidentiality is necessary. Then, on a case-by- case basis, you can require confidentiality.

In a recent case, the NLRB ruled that a Company’s investigative confidentiality requirement violated the law. However, the U.S. Court of Appeals for the D.C. Circuit disagreed and refused to enforce the Board’s order. The Court held that the NLRB did not present substantial evidence to justify its decision.

The evidence revealed that the Employer “in practice” did not request non-disclosure in all cases. The Employer also testified that it would request non-disclosure only when an investigation required the investigator to speak to more than one person and only in the most sensitive situations, which were identified as sexual harassment, hostile work environment, and suspicion of abuse cases.

The Court ruled that the NLRB made unwarranted logical leaps that the evidence did not support. Even though the Employer identified the types of cases it thought were sensitive enough to seek confidentiality, there was no evidence that the Employer necessarily required confidentiality in all cases.

The NLRB simply never asked key questions to established whether, “in practice,” the Company had a policy of categorically requesting non-disclosure regarding any particular kind of investigation.

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