The NLRB Strikes Again: When "Recommendations" = "Directed"

Earlier this fall, the National Labor Relations Board ("NLRB") decided that a company policy recommending that employees not discuss HR-related investigations with fellow employees was in violation of Section 8 of the National Labor Relations Act ("NLRA").  The NLRB strikes again

The background of the Boeing Co. case (No. 19-CA-089374) goes like this:  Boeing Co. had a policy that directed employees to not talk to colleagues about on-going HR investigations.  The NLRB said this was not appropriate based on the employees' right to engage in "protected concerted activity" under the NLRA's Section 7.  As part of the NLRB's enforcement powers, they required Boeing Co. to revise its policy to be in tune with the NLRA.  In response to this requirement, Boeing Co. revised the language to say it was "recommended" that employees not discuss on-going HR investigations with other employees.  The NLRB said this wasn't good enough because when it comes down to it, "recommend" and "direct" are the same thing.  

SIDE BAR: The NLRA applies to all employers (except State and Federal Governments) and all employees, even those that are not unionized. 

If this seems to be absurd, you are in good company.  Internal HR investigations are very, very, (VERY) important.  Whenever an employee files a formal complaint, no matter how benign, it is important that the employer launch an investigation- even if its a small one.  Part of these investigations is collecting testimony from witnesses, the accuser, and the accused.  As you can imagine, this information-gathering expedition can lead to the discovery of some highly sensitive information (think: sexual harassment investigations). Sometimes this sensitive information is private and sometimes it is very personal.  All the time, it should be treated as confidential which is why a policy directing employees to stay quiet about an on-going investigation not only makes sense but is sometimes important.  Now the NLRB says this is a disruption to the employee's right to engage in protected concerted activity and therefore a violation of an employee's rights under the NLRA.  I'm going to have to disagree*. 

So what do you do now? I have no clue.  My first suggestion would be to politely suggest that employees refrain from talking about an on-going HR investigation; however, the NLRB shot this down.  Now HR leaders everywhere are in an NLRB pickle:  Do you run the risk of a squabble with the NLRB? Do you continue to suggest-direct employees to refrain from talking about HR matters?  Or is there some magical word the NLRB finds appropriate?  IDK. 

I've thrown up my hands on this one.  If you have a policy that says something similar - which my guess is most of my readers do -  it may be worth a second glance to see if your wording is NLRB-friendly (or at least friendly-ish).  Otherwise, I simply give you the knowledge to make an informed decision based on calculated risk.  If you want to know more, just ask.  

 

[*]  Now for the editorial: I do not think asking for employee confidentiality during an HR investigation is in violation of the NLRA.  Protected concerted activity under Section 7 of the NLRA protects the employees' rights to engage in activities intended to benefit the "mutual aid or protection" of the workforce.  During an HR investigation, the information gathered is often personal, private, and specific to a complaint - not about mutual aid and protection of all employees.   Assuring confidentiality is one of the reasons a lot of employees come forward with complaints and that, to me, has far more value to the mutual aid and protection of the workforce.