Employers, union and non-union alike, often ask employees to keep workplace investigations and complaints confidential. However, in its recent Banner Estrella Medical Center (Banner) decision, the National Labor Relations Board (Board) found such a practice to be unlawful under the National Labor Relations Act (Act).

In Banner, the Board found the hospital's practice of asking for confidentiality ran afoul of the Act because the employer's concern over protecting the integrity of its investigations was not sufficient to outweigh the resulting limits on employees' Section 7 rights to discuss their terms and conditions of employment.

To justify a prohibition on employees' discussion of ongoing investigations, the Board held an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights. The Board found the hospital had not established a legitimate business interest for asking employees not to discuss the investigations. The Board felt the hospital's blanket approach of asking for confidentiality in each case did not take into account key facts that might have supported such a restriction on a case-by-case basis. The Board noted such facts would be whether a witness needed protection, whether evidence was in danger of being destroyed, whether there was a danger of fabricated testimony, or whether there was a need to prevent a cover-up.

Banner serves as an important reminder to employers that, before implementing wide-ranging prohibitions that restrict employees from talking to their co-workers about workplace investigations and complaints (or any other terms and conditions of employment), they should first consider whether such a prohibition violates the Act.