Labor Law -- 2017



The Boeing Company v. National Labor Relations Board   (9th Circuit)

Employee confidentiality in workplace investigations

The NAM filed an amicus brief in the Ninth Circuit in response to a National Labor Relations Board's ("Board") holding that prohibits employers from recommending employee confidentiality during workplace investigations. Despite Boeing’s recommendation to employees being free of any coercion, threat, or penalty, the Board prohibited such communication absent a case by case balancing test.

According to the Board, employers may not recommend confidentiality of ongoing investigatory interviews unless they “first determine whether in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.” Unless an employer can make such a determination, recommending any investigatory confidentiality is now per se unlawful.

The NAM’s brief argued that the Board’s ruling infringes upon the free speech rights of employers while impeding employers’ right to conduct effective workplace investigations under other federal employment laws.

Additionally, the NAM argued that the Board’s ruling is impracticable considering the realities of workplace investigations. This ruling requires employers to make a determination on the investigation before they know the substance of what that investigation might produce. Requiring upfront, uninformed decision-making from employers in conducting workplace violations makes maintaining confidentiality impossible.

On January 18, 2017, the Court remanded this matter to the National Labor Relations Board for further consideration based on Board rules that were established after this case was filed. The Board's decision to overrule precedent established a new, two-part test to determine whether employer work rules are lawful. If the rule is not explicitly unlawful, the Board will evaluate (1) the rule's potential impact on protected concerted activity, and (2) the employer's legitimate business justifications for maintaining the rule. The new test means that if the justifications for the rule outweigh potential impacts on employee rights, the rule is lawful.


Related Documents:
NAM amicus brief  (May 23, 2016)

 


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