Can Employers Lawfully Withhold Requested Information?

In the context of labor relations, employers are obligated to furnish information to union representatives during contract negotiations. This duty to provide information is a frequent topic of interest for labor relations practitioners as it is easy to inadvertently violate the law. For instance, an employer cannot refuse to provide information on the basis of confidentiality. However, unions must also provide employers with relevant and necessary information upon request. This mutual obligation to provide information ensures that both parties can effectively perform their duties. Nevertheless, the specific information that can be requested and the circumstances under which it can be requested vary and are dependent on the laws and regulations in place.

Employers must provide information to unions during contract negotiations

Employers are obligated to provide information to unions during contract negotiations. This is because the union cannot perform its duties as the bargaining agent without this information. However, the union must first request the information, and this request must be made in good faith. A demand made in bad faith or that is irrelevant may be refused.

The duty to furnish relevant information is a statutory obligation that exists independently of any agreement between the parties. Wages and related data for members of a bargaining unit are considered so important that they are presumptively relevant. Upon request, an employer must also provide information regarding contract administration, grievance processing, and negotiations.

Unions are savvy in making requests for information. They know what they are allowed to ask for and can tell whether the employer's bargaining representative knows the law about what they can ask for. An employer's duty to provide information to the union representing its employees is a frequent topic of interest to labor relations practitioners because it is very easy to violate the law. For example, an employer's assertion that the information is confidential is not enough to justify failing to turn it over.

Collective bargaining is a voluntary process that must be carried out in good faith. It can extend to all terms and conditions of work and employment and may regulate the relations between employers and workers and between the organizations of employers and workers. It is for the parties engaged in collective bargaining to decide what will be covered by their negotiations. Some of the subjects of collective bargaining identified by the ILO's Committee on Freedom of Association include wages, benefits and allowances, working time, annual leave, selection criteria in case of redundancy, the coverage of collective agreements, and granting of trade union facilities.

In a recent case, an Administrative Law Judge (ALJ) found that a union had violated Section 8(b)(3) by failing to furnish the employer with relevant and necessary information it had requested. The ALJ held that all union representatives must undergo training on how to lawfully respond to employer information requests.

Confidentiality may justify refusal to furnish information

Confidentiality may justify an employer's refusal to furnish information. In the United States, the National Labor Relations Act (NLRA) places a general, reciprocal statutory obligation on employers and unions to furnish certain information and documentation to each other in grievance procedures and in relation to collective bargaining. However, the National Labor Relations Board (NLRB) has recognized that the NLRB is required to balance a union's need for the information against any legitimate and substantial confidentiality interests when determining whether an employer must comply with a union's request for relevant but confidential information.

For example, in one case, the NLRB found that an employer did not violate the NLRA by refusing, on the basis of confidentiality, to furnish the union with a copy of notes from interviews the employer had conducted when investigating an employee's complaint about a supervisor's threatening conduct. The individuals who were interviewed participated voluntarily, and the manager told employees their responses would be kept confidential. The NLRB's reasoning cited the important purposes of encouraging employee participation in investigations of workplace misconduct and protecting those participants from retaliation.

Additionally, certain types of information are generally recognized as confidential, such as an employer's proprietary or trade secret information, an individual's medical or psychological test results, and the names of witnesses to drug transactions. In these cases, employers may be justified in refusing to furnish information to protect legitimate confidentiality interests.

It is important to note that the specific laws and obligations regarding information disclosure may vary depending on the country and industry. For example, in Ireland, the Supreme Court has held that public bodies must justify any refusal to disclose confidential or commercially sensitive information under the Freedom of Information Act 2014. This demonstrates that the legal framework surrounding information disclosure can differ across jurisdictions.

Employers cannot discriminate when requesting information

Employers are obligated to furnish information to union representatives during contract negotiations. This is a statutory obligation that exists independently of any agreement between the parties. However, this obligation only arises when the union requests the information. The information requested must be relevant, timely, and necessary.

While employers are generally required to provide information to unions, they can lawfully refuse to furnish certain information in specific situations. For example, an employer may refuse to provide information if doing so would violate confidentiality agreements or if the information is privileged. In one case, the National Labor Relations Board (NLRB) found that an employer did not violate the National Labor Relations Act by refusing to furnish the union with notes from interviews conducted during an investigation into an employee's complaint, as the manager had assured the interviewees that their responses would be kept confidential.

It is important to note that employers cannot discriminate when requesting or providing information. Under the laws enforced by the Equal Employment Opportunity Commission (EEOC), it is illegal for employers to make any employment decisions based on a person's race, color, religion, sex, national origin, age (40 or older), disability, or genetic information. This includes decisions about hiring, firing, promotions, pay, granting breaks, approving leave, and assigning workstations.

Additionally, employers are required to reasonably accommodate the religious beliefs of employees or prospective employees, unless doing so would impose an undue hardship. For example, if an employee requests a dress code accommodation due to their disability, the employer must grant it unless it causes significant difficulty or expense.

Furthermore, it is unlawful for employers to retaliate against employees or applicants for exercising their rights, such as filing a complaint or participating in an investigation. This protection also extends to "whistleblowing" or disclosing information about wrongdoing.

Unions must also provide information to employers

Unions are required to provide timely, relevant, and necessary information requested by employers. This is because the same legal principles that mandate an employer to provide information in response to a union's request apply equally when an employer seeks information from a union.

Unions must make requests for information in good faith, and they cannot be intended to harass the employer. If an employer claims that a union is acting in bad faith, the employer must prove this. A union's request for information must also be timely. If the request is untimely, the employer could argue that the union has waived its right to make the request or that the employer is justified in denying the request.

Unions are entitled to information needed for contract negotiations, to evaluate grievances, and for contract administration. All information related to bargaining unit employees and their terms and conditions of employment is presumptively relevant. For example, information related to wages, benefits, hours, and working conditions is presumptively relevant to collective bargaining. If an employer refuses to provide this information, the burden is on the employer to show that the presumptively relevant information is irrelevant.

If a union's request for information is ambiguous, an employer should request clarification rather than ignore or refuse to respond. Employers should also be cautious about claiming irrelevancy and instead ask the union to explain the relevance of the request. This puts the burden on the union to establish relevancy without constituting an outright refusal to provide information.

In some cases, unions may be able to provide alternative accommodations if they object to providing certain information. For example, they can offer to produce information with sensitive data redacted or agree to a confidentiality agreement.

Employers must accommodate disabilities unless it causes undue hardship

The Americans with Disabilities Act of 1990 (ADA) requires employers to provide reasonable accommodations to qualified individuals with disabilities who are either employees or applicants for employment. This is to ensure that employees with disabilities can enjoy the "benefits and privileges of employment" equal to those enjoyed by their peers without disabilities. These benefits and privileges include, but are not limited to, employer-sponsored training, services (e.g. employee assistance programs, credit unions, cafeterias), and social functions.

Reasonable accommodations refer to modifications in the job, work environment, or work performance that allow individuals with disabilities to apply for a job, perform the essential functions of the job, and enjoy equal access to benefits available to other individuals in the workplace. For example, an employer may be required to provide a sign language interpreter during a job interview for an applicant who is deaf or hard of hearing. It is important to note that reasonable accommodations only apply to the physical or mental limitations of a qualified individual with a disability that the employer is aware of.

However, employers are not obliged to provide accommodations that would cause undue hardship. Undue hardship is defined as an action requiring significant difficulty or expense when considering factors such as the organization's size, financial resources, and the nature and structure of its operation. If an existing facility cannot be made accessible due to undue hardship, the employer must provide a comparable alternative that enables individuals with disabilities to enjoy similar benefits and privileges of employment.

If an employee with a disability needs a modified or part-time schedule as a reasonable accommodation, the employer must accommodate this request unless it causes undue hardship. In such cases, the employer must reassign the employee to a vacant position for which they are qualified and which allows for the modified or part-time schedule, provided it does not impose undue hardship. It is worth noting that businesses with fewer than 15 employees are not covered by the employment provisions of the ADA.

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