NLRB Requires Specific Business Justifications for Confidentiality Requests Made During Internal Investigations

On July 30, 2012, in a decision that applies equally to union and non-union employers, the National Labor Relations Board ("NLRB" or "Board") held that employers violate protected employee rights by maintaining and applying blanket prohibitions on employee discussion of ongoing internal investigations. Banner Estrella Medical Center, 358 NLRB No. 93 (2012). According to the Board, "[t]o justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' [protected] rights."

The employer in Banner utilized an "Interview of Complainant Form" in its internal investigations which included a general instruction that complaining employees not discuss the ongoing investigation with coworkers. The form was not given to employees during investigations but was used as a guide for interviewers. Accordingly, the employer's human resources consultant routinely requested confidentiality from complaining employees, but did not do so in every situation.

The Board found fault with the employer's "blanket approach" to employee confidentiality despite the employer's argument that its broad prohibition was necessary to maintain the integrity of its investigations. The employer's generalized concern, the Board explained, was insufficient to outweigh the right of employees under Section 7 of the National Labor Relations Act to engage in protected concerted activity.

The NLRB did not ban confidentiality requests in all internal investigations. Rather, the Board instructed that the onus is on the employer at the outset of the investigation to determine if a legitimate business justification exists for requesting employee confidentiality. The Board specifically identified the following employer needs as legitimate business reasons justifying a request for confidentiality: 1) protecting witnesses; 2) preserving evidence; 3) avoiding the fabrication of testimony; and 4) preventing a cover up. Other similarly important business justifications would presumably satisfy the Board's requirements as well.

Banner serves as an important reminder to all employers—union and non-union alike—that the decision to request confidentiality during an investigation must be prompted by the specific facts of the complaint under investigation and that blanket prohibitions are unlawful. Prior to making a confidentiality request, employers should be able to articulate a legitimate business justification for doing so—something savvy human resources personnel will be able to do in many, if not most, situations given the justifications identified by the Board. Additionally, employers should consider revising harassment and other policies and documents that may contain overbroad confidentiality requirements applicable to internal investigations.