The National Labor Relations Board’s Division of Advice recently reviewed an employer’s work rule regarding confidentiality of investigations under the standard established in Banner Health System, d/b/a Banner Estrella Medical Center, and suggested language that an employer could use to protect the confidentiality of some of the employer’s investigations. We informed you of the Banner Health decision in our August 2012 E-Alert.

The Banner Health decision held that an employer’s generalized concern about the integrity of investigations is not sufficient and that a blanket work rule prohibiting discussions “reasonably chills” employees’ exercise of Section 7 rights under the National Labor Relations Act (NLRA). Section 7 sets forth employees’ rights to engage in protected concerted activity. As a result, an employer must establish the need for confidentiality in the context of an investigation that presents specific factors that give rise to a legitimate and substantial business justification for interference with Section 7 rights. The Banner Health decision is pending review in the Court of Appeals for the District of Columbia.

In Verso Paper, the Division of Advice found the following rule to be unlawful:

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 objections, 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 Division of Advice instructed that the company could comply with the NLRA by deleting the last two sentences of the rule and replacing them with the following language:

Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

From the perspective of the Division of Advice, this language takes into account an employer’s burden to justify a business need for confidentiality that outweighs employees’ rights under the NLRA. Employers would be wise to compare the wording of their internal investigations work rule against the rules examined in Banner Health and Verso Paper or consult with employment counsel to determine if revisions should be considered to bring the work rule into compliance with the Banner Health standard.