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The NLRB agrees: Boeing's quest for confidentiality infringes on employee rights
By Katherine Fechte, T. Christopher Bailey on September 23, 2015 at 11:14 AM

The National Labor Relations Board has long held employers cannot stifle employee communications about the conditions of their employment in general handbook confidentiality clauses, but on Aug. 27, the NLRB took that prohibition one step further.

In a 2-1 decision, the board ruled The Boeing Co.’s confidentiality restriction for employees under HR investigations violated the National Labor Relations Act. (Boeing Co., 2015 BL 278958, 362 N.L.R.B. No. 195, 8/27/15.)

Before November 2012, Boeing routinely distributed to all employees involved in investigations a confidentiality notice that stated, in relevant part: “Because of the sensitive nature of such information, you are directed not to discuss this case with any Boeing employee other than company employees who are investigating this issue or your union representative.”

Boeing argued that requiring confidentiality in all of its investigations was lawful based on legitimate business justifications such as protecting witnesses, victims or employees under investigation from retaliation or harassment, as well as preventing the spread of unfounded rumors. The board found that while an employer may legitimately require confidentiality in appropriate circumstances, it also must attempt to minimize the impact of such a policy on protected activity. Thus, an employer may prohibit employee discussion only when its need for confidentiality in a specific investigation outweighs employees' Section 7 rights. Boeing’s generalized concern about protecting the integrity of all of its investigations was insufficient to justify the sweeping policy.

In November 2012, Boeing revised its confidentiality notice to employee witnesses and recommended that employees not discuss their investigations, rather than directly prohibiting it. The board found this revised notice was virtually identical to the original and rejected Boeing’s argument that the substitution of "recommend" for "direct" cured whatever defects existed in the original notice. The board’s decision rested on the lack of any assurance in the notice that employees were free to disregard the recommendation that they refrain from discussing the investigation.

If you have questions about the NLRB’s decision and its potential impact on your company’s confidentiality clauses, please contact any of the attorneys in our Employment & Labor Group.

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