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Administrative Law Judge Finds Confidentiality Policy to be Illegally Overbroad

August 30, 2013

An ongoing issue faced by employers is the increased scrutiny that the National Labor Relations Board has given to policies dealing with an employer’s attempt to maintain confidentiality of internal investigations.  A recent decision by an Administrative Law Judge (ALJ) holds that an employer’s notice to employees recommending, but not requiring, that they refrain from discussing an internal investigation had a reasonable tendency to chill employees from exercising their statutory right to organize. In a case entitled Boeing Company and Joanna Gamble, Boeing disciplined an employee for communicating with coworkers about a recently completed human resources investigation into sexual harassment allegations against her male supervisor.  As part of its standard practice, the employer had employees involved in an internal investigation sign a confidentiality notice stating, in pertinent part, “Human Resources Generalist investigations deal with sensitive information.  Because of the sensitive nature of such information, we recommend that you refrain from discussing this case with any Boeing employee other than company representative[s] investigating this issue or your union representative, if applicable.”  The employer had changed the wording from a previous notice that we “direct that you refrain from discussing this case.” The ALJ held that even with the change in wording, the notice still violated the National Labor Relations Act.  The ALJ held that, by asking employees to sign the notice, the company is communicating that its confidentiality concerns, which were clearly expressed, should be taken seriously.  Further, the judge noted, nothing in the notice can reasonably be interpreted as an assurance to employees that they are free to disregard the company’s request for confidentiality and discuss the case if he or she chooses to do so.  While it remains to be seen whether the ALJ decision will be appealed to the NLRB, this decision is indicative of the increased scrutiny given to employer policies regarding confidentiality of investigations.  Even in union-free workplaces, employees who are disciplined under these policies are increasingly turning to the NLRB to seek redress, and it is becoming more and more difficult for employers to maintain and enforce such policies.