Many employers ask employees who make a complaint, and potential witnesses, not to discuss the subject of an internal investigation with other employees. Employers (and legal counsel) consider this common request to be a prudent step toward protecting the integrity of the ongoing investigation. It encourages employees to come forward with concerns, encourages witnesses to cooperate, and helps to suppress rumors. However, employers may have to reconsider this practice in light of this week’s National Labor Relations Board (NLRB) decision, Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro.
In the 2-1 decision, the NLRB determined that the employer’s “blanket approach” of routinely asking complaining employees not to discuss the matter with coworkers during an internal investigation violated Section 8(a)(1) of the National Labor Relations Act (NLRA). The majority found that the employer’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights.” Section 7 of the NLRA protects the right of union and non-union employees to discuss terms or conditions of employment and collectively express workplace concerns.
The NLRB found that the request had a “reasonable tendency to coerce employees and so constituted an unlawful restraint of Section 7 rights.” According to the decision, in order to minimize the impact on Section 7 rights, an employer must take a case-by-case approach and 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. The decision suggests that if one or more of these requirements is satisfied, an instruction not to discuss the investigation would be warranted.
The dissenting NLRB member refused to side with the majority, based on his belief that an employer’s “suggestion” that employees not discuss matters under investigation was not a binding work rule. In this case, the employer did not threaten the employee with discipline if the employee did not comply with the employer’s request.
This decision clearly complicates HR’s role in effectively addressing allegations of harassing behavior and other issues in the workplace. However, in light of this decision, all employers (non-union and union) should review and consider revising work rules and internal investigation procedures and practices that might have a “reasonable tendency” to restrain employees from discussing terms or conditions of employment or collectively expressing workplace concerns. This controversial decision may be challenged on appeal but, for now, it is NLRB precedent.