Employers should revisit their policies related to workplace investigations in light of the National Labor Relations Board's (NLRB's) recent decision in Banner Health System, in which the Board, in a 2-1 decision, held that a policy of routinely asking employees not to discuss ongoing workplace investigations violated Section 7 of the National Labor Relations Act.
In Banner, the employer routinely asked employees not to discuss internal workplace investigations with co-workers while the investigations were ongoing. The Board determined that this policy ran afoul of that part of Section 7 that provides that employees have the right to engage in "protected concerted activities for the purpose of collective bargaining or other mutual aid or protection." In its decision, the majority held that, "[t]o justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights."
The Board's decision reversed the Order issued by the administrative law judge, who determined that the employer's practice was justified "for the purpose of protecting the integrity of the investigation." In so doing, the majority held that protecting the integrity of an investigation does not, standing alone, justify the potential intrusion on employees' Section 7 rights. The Board suggested, however, that an appropriate "business justification" in this context might include instances where an investigation witness needs protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is need to prevent a cover-up, none of which was present in Banner. In his dissent, Board Member Hayes found nothing wrong with the employer's practice because the affected employees were merely asked not to discuss ongoing investigations and were not threatened with discipline for failing to do so.
In light of the NLRB's decision, both union and non-union employers should review their policies regarding confidentiality and workplace investigations. Blanket confidentiality provisions could be problematic, but in practice, such policies should be enforced where there is an appropriate business justification.