Don’t Require Employees to Keep Written Warnings Confidential

 

Allen Smith, J.D. By Allen Smith, J.D. October 18, 2018
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​Trying to discourage workplace gossip by prohibiting employees from discussing their written disciplinary warnings usually isn't a good idea on the part of employers, employment attorneys say.

Jay Hux, an attorney with Fisher Phillips in Chicago, has seen written warnings that state discipline should be kept confidential. These statements should be stricken, he said, as they may violate the National Labor Relations Act (NLRA).

Precluding employees from discussing written warnings could trigger a claim that the employer is violating the employee's rights under Section 7 of the NLRA, which covers protected concerted activity, as the warnings could be interpreted to be a term or condition of employment, explained Jennifer Rusie, an attorney with Ogletree Deakins in Nashville, Tenn. The NLRA's protected concerted activity provisions apply to all employers, not just those with a unionized workforce.

There are few benefits to a policy requiring employees to keep performance counseling documents confidential, Rusie said, but one advantage is that it reduces the risk of misinformation circulating among workers.

Rusie recalled one employee who discussed her written warnings with co-workers, many of whom had also received written warnings for the same conduct. The co-workers didn't want to discuss their counseling with the woman, so they told her they had not received any warnings. The woman concluded that she had been treated less favorably than her co-workers and filed a lawsuit against the company.

"Had a confidentiality policy been in place, either the plaintiff would not have discussed her warnings or her co-workers could have honestly stated that they were not allowed to discuss such matters," Rusie said. "Consequently, the plaintiff may not have developed a belief that she was being treated unfairly."

Employers that want to adopt a policy requiring confidentiality need to ensure that they apply it consistently, she noted.

Generally, however, the advantages of having a confidentiality policy are not enough to outweigh the issues of legality and enforceability that such a policy raises.

Mike Asensio, an attorney with BakerHostetler in Columbus, Ohio, said that "all employees, including the employee being disciplined, have the right under the NLRA to engage in protected concerted activity. Accordingly, they have a right to discuss their discipline with other employees. Practically and legally, I don't think an employer could enforce a confidentiality requirement against an employee."

[SHRM members-only HR Q&A: What is the function of the NLRA?]

A policy that employees keep written warnings confidential would be difficult to enforce, Rusie agreed. Plus, "in this age of information and disclosure, a policy designed to restrict the flow of information will certainly engender a culture of mistrust and suspicion, which does not make for a productive work environment," she said.

Employer Can't Guarantee Confidentiality Either

It's also risky for an employer to assure confidentiality with regard to discipline because the employer may be legally required to publicize disciplinary records in the event of a lawsuit or it may be in the employer's interest to publicize those records, Asensio added. An employer may have to produce employee disciplinary records to defend its actions in response to third-party subpoenas, for example.

"Under the NLRA, employee discipline cannot be kept confidential," he noted. "Employers should never promise confidentiality with regard to discipline in a union environment," he emphasized. "The union has a right to such information, as the bargaining representative and many collective bargaining agreements require the employer to share copies of all discipline with the union."

That said, the National Labor Relations Board should be receptive to employers' arguments that there is a legitimate business reason for maintaining confidentiality in harassment investigations, Asensio said.

Employers should discourage workplace gossip and the spreading of incorrect information, he noted, but they should also recognize an employee's right to discuss discipline with co-workers. Furthermore, employers should give disciplined employees opportunities to express their thoughts about written warnings to managers and to appeal the discipline.

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