What you need to know:
The National Labor Relations Board recently ruled that an employer’s blanket policy requiring employees to keep internal investigations confidential violates the National Labor Relations Act’s protections on concerted employee activity. The NLRB decision places the burden on employers (both union and non-union) to establish at the outset of an investigation that confidentiality is warranted, in accordance with specified criteria.
What you need to do:
Employers should consider the NLRB’s criteria before determining whether and how to request that employees keep an investigation confidential. Employers should also revise written employment policies, and revisit unwritten practices and procedures, to ensure that they do not impose unnecessarily broad confidentiality requirements on investigations that could violate the NLRB’s ruling.
In Banner Health System d/b/a Banner Estrella Medical Center, an employee of an Arizona hospital alleged that the hospital retaliated against him after he complained about unsafe working conditions. In response to the employee’s complaint, and in accordance with routine hospital practice, the hospital’s human resources consultant asked the employee not to discuss the matter with anyone while his complaint was being investigated. The employee claimed that the hospital’s instruction that he keep the matter confidential violated the National Labor Relations Act because it could be interpreted as prohibiting employees from engaging in protected concerted activity. This issue went before an administrative law judge, who ruled that the hospital’s routine practice of asking employees to keep investigations confidential was lawful. However, on appeal, the NLRB ruled that the hospital’s blanket confidentiality policy violated the NLRA because it chilled employees’ rights to communicate with co-workers about the terms and conditions of employment.
Reasons to Request Confidentiality
The NLRB’s decision stipulates that employers may only ask employees to keep investigations confidential if employers can first establish that there is a legitimate business need to do so that outweighs the employee’s rights under the NLRA. According to the NLRB’s decision, legitimate reasons for requiring employees to keep an investigation confidential include the employer’s determination that:
- Certain witnesses involved in the investigation need protection;
- Evidence is in danger of being destroyed in the course of the investigation;
- Testimony is in danger of being fabricated in the course of the investigation; or
- There is a need to prevent a cover-up.
Therefore, employers cannot preclude employees from discussing an internal investigation unless they are able to articulate one of these legitimate bases for doing so.
What the Decision Means for Employers
Banner Health System is the latest in a series of NLRB decisions striking down fairly common and previously uncontroversial employer policies. Like other such decisions, it will likely be challenged and clarified going forward. However, for the time being, union and non-union employers should consider the NLRB criteria noted above before informing employees involved in investigations of their confidentiality obligations. An employer’s generalized interest in protecting the integrity of an investigation is no longer a sufficient justification for requiring employees to refrain from discussing the investigation.
Steps Employers Can Take Now
As a practical matter, compliance with the NLRB’s decision will prove challenging. The requirement that employers determine the need for confidentiality at the outset of an investigation presents difficulties, since at that stage it is typically unclear how the investigation will unfold, what facts will be uncovered, and what parties will be involved. However, the following steps are recommended until further guidance is available:
- Review and revise all written employment policies and unwritten employment practices to ensure that they do not impose blanket confidentiality requirements upon investigations.
- Advise personnel carrying out investigations that they should no longer instruct employees to keep such matters confidential as a matter of course.
- For each investigation, consider alternatives to a blanket confidentiality rule that would accommodate the NLRB’s guidance. For example, employers might provide a written explanation to witnesses detailing the employer’s specific justification for requesting that the investigation be kept confidential. Alternatively, employers might make a written request for confidentiality that includes a narrow exception for protected concerted activity under the NLRA.
There are multiple potential solutions to the need for confidentiality in investigations that both meet the legitimate needs of the employer and accommodate the NLRB’s decision. Counsel can assist in crafting one appropriate for your situation.