When employers are conducting investigations into employee or company wrongdoing, it is standard practice for interviewees to be instructed not to talk about the case while it is being investigated. Many employers go so far as to use a standard form that employees are asked to sign agreeing to maintain confidentiality regarding the investigation.

The National Labor Relations Board recently took issue with this practice in a case that an employee filed claiming he was terminated for engaging in protected activity. Under the National Labor Relations Act, employees are guaranteed the right to engage in concerted activities with the intent of improving pay or working conditions.

In the case, the employee had been interviewed pursuant to an internal investigation and was later terminated. The Board rejected the employee’s claim that he was wrongfully fired, but found that the employer had violated the Act by using a standard form to request that the employee maintain confidentiality about the investigation.

The Board found that a policy restricting employees from discussing any internal investigation violated the Act because it could be interpreted by employees as telling them not to discuss terms and conditions of employment. This does not mean that employees may never rightfully be instructed to maintain confidentiality. Rather, the Board stated that employers have a duty to first determine whether there is a reasonable need for confidentiality to be maintained. If there is, then a request or instruction for confidentiality may be appropriate.

An important thing for employees to know is that the NLRA does not apply only to unionized workforces. The Act was passed in the 1930’s to ensure workers’ rights to form or join labor unions. Its purpose was to protect those rights and provide a framework for employees and their employers to follow in exercising them. The ruling in this case demonstrates that the Board remains vigilant in safeguarding the rights of employees to engage in the concerted activity of discussing conditions of employment, even in advance of union representation.

The attorneys at Tipp & Buley, headquartered in Missoula, are experienced in representing employees in labor matters. Call us at 406-812-7634 or visit our website. We’ll review your case with you and help you decide whether you can pursue legal action.