Furthering its controversial ruling in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board’s Office of the General Counsel recently released a memorandum providing additional guidance on the confidentiality of internal workplace investigations. Banner Health held that to require confidentiality of investigations, an employer must show more than a generalized concern with protecting the integrity of its investigations. Rather, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”

The memorandum, dated January 29, 2013, addressed a policy of Verso Paper, an employer operating paper mills across the country. Verso Paper’s Code of Conduct prohibited employees from discussing ongoing investigations. The provision stated:

Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

The NLRB found the rule to be overbroad “because the Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.”

Relying in part on Banner Health, the NLRB stated that an employer violates Section 8(a)(1) of the National Labor Relations Act when it maintains a work rule that reasonably chills employees in the exercise of their Section 7 rights, including the right to discuss discipline or disciplinary investigations involving their fellow employees. The Board stated that an employer may only prohibit employees’ discussions during an investigation if it demonstrates that it has a legitimate and substantial business justification that outweighs the Section 7 right.

The Board found that Verso Paper’s policy violated Section 8(a)(1) because it did not take into account the employer’s burden to show in each particular situation that a business justification for confidentiality outweighed employees’ Section 7 rights. Further, “[t]he Employer may not avoid this burden by asserting its need to protect the integrity of every investigation, but rather must establish this need in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification for interference with the employees’ Section 7 right.”

The Board’s holding and guidance leave employers in an untenable position. On one hand, according to the NLRB, employers may not have a blanket requirement of confidentiality for investigations. On the other hand, their obligation to prevent harassment or other violations of Title VII (for example), acknowledged in cases such as Faragher v. City of Boca Raton, 524 U.S. 775 (1998), could be hindered by the inability to require confidentiality of investigations. For example, without a requirement of confidentiality, some employees may be uncomfortable reporting instances of discrimination or harassment or truthfully participating in an investigation.

Regardless of the wisdom of the NLRB’s guidance, employers should consider and document the Banner Health factors, including the basis for confidentiality, in every workplace investigation.