Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012)
On July 30, 2012, the NLRB issued its opinion in Banner Estrella Medical Center, holding that a company’s policy of prohibiting employees from discussing ongoing investigations violates employees’ rights under the National Labor Relations Act (“NLRA”). The employer, Banner, told an employee that he should keep an investigation into his complaints about his performance evaluation confidential. After completion of the investigation into the employee’s performance evaluation, the employer determined that the evaluation was proper. The employee, who was not represented by a union, filed a charge with the NLRB.
The NLRB determined that the employer’s instruction to the employee not to discuss the investigation regarding his performance evaluation with others was illegal. The NLRB held that in order to minimize the impact on protected employee rights, the employer must “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 NLRB held that the employer’s “blanket approach clearly failed to meet those requirements.” Because the employer’s approach was overly broad, the NLRB held that it violated the law.
Employers should review their policy and procedure manuals and determine whether a policy exists regarding confidentiality during investigations. Those policies should be revised to include the specific reasons enunciated by the NLRB as justification for whether confidentiality is necessary during an investigation (e.g., protection of witnesses, danger of evidence destruction, danger of fabricated testimony, or preventing a cover up). During each investigation in which the employer seeks confidentiality, one or more of those reasons should be explained to the employee as the reason for confidentiality. If none apply, the employer should consider whether to insist upon confidentiality.