The NLRB, in its controversial decision in Banner Health Systems, 362 NLRB No. 137 (June 26, 2015), disapproved of employers’ practice of directing employees to keep information related to internal investigations confidential. The NLRB held that employers violate their employees’ rights under Section 7 of the National Labor Relations Act when they require, or even request, that employees keep interviews conducted as part of an internal investigation confidential from other employees, unless the employer can demonstrate that the needs of a particular investigation require confidentiality. Banner Health effectively endangered any categorical confidentiality policy; in the NLRB’s view, an employer’s direction of confidentiality would only be justified if the employer made an individualized determination “that confidentiality was necessary to maintain the integrity of any particular investigation or any particular interview.”
As background, Banner Health, a nonprofit health system, issued to its human resources consultants a standard interview script to use when conducting workplace investigations, referred to as the Interview of Complainant form. The form, under the header “Introduction for all interviews,” set forth scripted nondisclosure language that instructed interviewers to ask employees to refrain from discussing the content of their interviews or an ongoing investigation with fellow employees. Banner Health’s practice was similar to that of many employers nationwide. The NLRB nevertheless sanctioned Banner Health.
In Banner Health System v. National Labor Relations Board No. 15-1245 (March 24, 2017), the D.C. Circuit denied enforcement of that part of the NLRB’s decision that sanctioned Banner Health for maintaining a categorical policy of asking employees not to discuss HR investigations – not because the court rejected the NLRB’s position on investigative confidentiality, but because it found that there was no evidence in the record that there was such a categorical policy in place at Banner Health. The court explicitly declined to opine “on the Board’s requirement of a case-by-case approach to justifying investigative confidentiality.” As to Banner Health, the court found that the record lacked evidence that would allow the NLRB to conclude that it maintained a categorical investigative policy; the single HR employee who testified said that she did not in practice request nondisclosure in all interviews and didn’t consistently read from the interview script. For now, then, even though the NLRB’s Banner Healthdecision has been overturned, the NLRB’s position that employers may not categorically require confidentiality during HR investigations was not explicitly rejected.
The court did agree with the NLRB that Banner Health’s Confidentiality Agreement—which the employer required all employees to sign upon hire—was overbroad because it explicitly directed employees not to discuss coworkers’ “private employee information (such as salaries, disciplinary action, etc.).” The court stated that “a reasonable employee could well understand Banner’s rule to prohibit the very discussion of terms and conditions of employment that Section 7 [of the National Labor Relations Act] protects.” This aspect of the decision is in line with other rulings of the NLRB that are not particularly controversial, as it is generally understood that employers may not prohibit employees who fall within the scope of the Act from discussing terms and conditions such as compensation.