NLRB Restricts Company From Requiring Employee to Keep Performance Improvement Plan Confidential
- March 06, 2015
When faced with performance or disciplinary issues, human resource professionals often turn to use of a performance improvement plan (PIP) as a method to explain to employees problems with their work and expectations for improvement. Earlier this month, the National Labor Relations Board reaffirmed an earlier decision prohibiting an employer from requiring that employees keep the contents of the PIP confidential.
Grand Canyon Univ. involved an employee who received a PIP following an acrimonious meeting between her and her supervisor. Following the meeting, the university’s human resource officer met with the employee. The PIP contained a written requirement that the employee not discuss its contents with any co-workers. In addition to issuing the PIP regarding insubordination, human resources also required the plaintiff to disclose the names of other employees who may have similar complaints regarding the supervisor. The plaintiff brought an unfair labor practice charge with the NLRB, alleging that the human resource counseling requirements violated her rights to engage in concerted activity under Section 7 of the NLRA.
The NLRB agreed, ordering that the plaintiff be reinstated with back pay and seniority. The Board concluded that the university’s actions had an impermissible chilling effect on concerted activity rights. By interrogating the plaintiff about co-workers who had issues with the supervisor, and by prohibiting her from discussing with co-workers the contents of the PIP, the employer interfered with their rights to collectively address workplace issues.
Standard employee PIPs should not contain a non-disclosure requirement. The NLRB has recognized that in limited circumstances, the employer may instruct employees not to discuss human resource matters. However, these exceptions generally apply to ongoing investigations of workplace misconduct (such as sexual harassment investigations). The exceptions would not apply to routine employee discipline and counseling matters where disclosure by the employee to co-workers would not interfere with investigations.