Yet another common employer policy has come under fire from the National Labor Relations Board (NLRB). It doesn’t matter if your workforce is unionized or not — if you’ve got this policy, it could be deemed illegal.
What’s the policy? Asking workers to keep internal investigations confidential.
In a case that involved the telecommunications giant T-Mobile USA Inc., an administrative law judge for the NLRB just ruled that asking employees to keep information that’s shared/discussed during internal investigations confidential infringes upon workers’ rights under the National Labor Relations Act (NLRA).
Employee reports harassment
Angela Agganis was a customer service rep for a T-Mobile USA store in Oakland, ME, when she went to a T-Mobile HR representative, Karen Estes, to report a sexual harassment allegation against her coach.
Afterwards, Estes informed Agganis that she would have to file an incident report. Estes then gave Agganis T-Mobile’s “Notice and Acknowledgement of Duty to Cooperate and Confidentiality,” and she told Agganis to sign and date the notice form.
The notice stated, in part:
“You should keep confidential all communications between you and the Corporate lnvestigator(s) concerning this matter throughout the pendency of this investigation unless permitted by law. This includes all questions and answers during this interview, any written statement that you provide to the investigator(s), and all other information or documents provided to the investigator(s) in connection with this matter.”
Then, in conclusion, the notice stated:
“By signing below, you acknowledge that (1) you have read this document, understand it and agree to adhere to it; and (2) failure to adhere to the duties set forth above may cause harm to T-Mobile and subject you to performance improvement action up to and including dismissal.”
After reading the form Agganis asked if it was correct that she could be disciplined, up to and including termination, for discussing the situation with her co-workers.
Estes confirmed Agganis was correct.
Unfair labor practice
When T-Mobile’s worker’s union, the Communications Workers of America, caught wind of this, it filed an unfair labor practice charge with the NLRB.
The union claimed the notice violated employees’ NLRA rights to freely discuss the terms and conditions of their work.
Section 7 of the NLRA gives employees the right to take part in “concerted activities for the purpose of collective bargaining or other mutual aid or protection … ”
The NLRB has been interpreting this clause very broadly in recent years. It has said it gives employees the unequivocal right to discuss the terms and conditions of their employment. The underlying reason being that employees need to have the ability to plan or coordinate activities that may lead to union representation.
As a result, the NLRB has been on a scorched-earth crusade to eliminate any employer policies that have the potential to prevent employees from taking any such actions.
Did the administrative law judge who heard the case agree with the Communications Workers of America’s charges against T-Mobile?
Yes. The judge said the notice and confidentiality requirement did violate employees’ NLRA-protected speech rights.
T-Mobile must now rescind the confidentiality notice and policy, and post a notice about the rescission where employees will see it.
What’s particularly troubling for employers about this case is that T-Mobile actually included a clause in the confidentiality notice that said:
“Please note that nothing in this Notice and Acknowledgement impacts your rights to discuss terms and conditions of employments as protected by law … “
But the judge said that wasn’t enough to save T-Mobile. Why? In essence, the judge said the statements requiring employees to keep all communications between employees and investigators confidential may have carried enough weight with employees to discourage them from speaking up about the terms and conditions of their employment.
Another thing that’s important about this case is that it applies not just to unionized workforces, but to all workforces. While the NLRB is commonly associated with unions, it has the power to made decisions that affect all employers.
Other common policies the NLRB has axed recently include:
- “no-personal use” email polices
- prohibitions on discussing wages
- social media policies prohibiting employees from discussing work matters
- prohibitions against discussing employee discipline, and
- handbook policies prohibiting negative comments about fellow team members.