NLRB holds that employer’s practice of requesting employees to keep internal investigations confidential violates the NLRA.

The National Labor Relations Board ("NLRB" or "Board") is at it again, this time finding that an employer's policy prohibiting employees from discussing ongoing investigations of employee misconduct infringes upon employees’ Section 7 rights in violation of Section 8(a)(1) of the National Labor Relations Act ("Act" or "NLRA"). Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 358 NLRB No. 93 (July 30, 2012).

The case arose when a hospital employee refused to follow a supervisor’s instructions and instead complained to Human Resources ("HR") regarding a practice that, according to him, compromised patient care. During investigatory interviews of the incident, the HR investigator asked employees not to discuss the matter with co-workers while the investigation was ongoing.

The investigator ultimately determined that the employee had been insubordinate and he received a disciplinary "coaching." On the basis of an unfair labor practice charge filed by employee, the NLRB Regional Director issued a complaint that included allegations that the employer's practice of instructing employees not to discuss an ongoing investigation with co-workers violates Section 8(a)(1) of the Act.

Following a hearing, an Administrative Law Judge ("ALJ") ruled that the policy’s "purpose of protecting the integrity of the investigation" was legitimate and lawful, but the Board disagreed and reversed the ALJ in a 2-1 decision. According to the NLRB, for an employer to justify a prohibition on employee discussions of ongoing investigations, it "must show that it has a legitimate business justification that outweighs employees' Section 7 rights."

The Board then held that the employer's

"generalized concern with protecting the integrity of its investigation is insufficient to outweigh employees' Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the [employer's] burden 'to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up. The [employer's] blanket approach clearly failed to meet those requirements." 

Member Hayes dissented from the Board's opinion and argued that the employer did not promulgate a rule but "merely suggested that employees not discuss matters under investigation." Hayes concluded that the rule did not violate the Act because there was no actual work rule "with binding effect" and no threatened discipline for discussing the investigation with others.. The majority disagreed and stated that the NLRA "does not require that a rule contain a direct or specific threat to be found unlawful."

In light of the Board's decision, employers should tread carefully when instructing employees to maintain confidentiality of matters under investigation. Specifically, employers should avoid per se rules or policies against discussing investigations and instead consider, on a case–by-case basis:

  • Whether any witnesses need protection,
  • Whether evidence is in danger of being destroyed,
  • Whether testimony is in danger of being fabricated, and
  • Whether there is a need to prevent a cover-up.

Put simply, this Board decision requires employers to consider whether there is a compelling reason for confidentiality bsaed on these factors or another provable legitimate business justification.