In the latest in a series of National Labor Relations Board (“Board”) decisions that expands its sphere of influence in non-unionized workplaces, a divided three-member panel of the Board found that an employer’s routine request that employees not discuss matters under investigation with their co-workers violated Section 8(a)(1) of the National Labor Relations Act because it “had a reasonable tendency to coerce employees.” Banner Health System 358 NLRB No 93 (July 30 2012)

In reaching its conclusion, the Board brushed aside the employer’s “generalized concern with protecting the integrity of the investigation.” The Board did suggest, however, that confidentiality may be appropriate, and lawful, if the employer can show: (1) the need to protect witnesses; (2) a likelihood that evidence may otherwise be destroyed; (3) the threat that subsequent testimony would be fabricated; or (4) the need to prevent a “cover-up.” Unfortunately, the Board offered no guidance as to what type of proof (general or specific, subjective or objective) is required to meet this burden.

The Board’s decision, which applies to both non-unionized and unionized workplaces, raises a number of interesting issues. Perhaps the most significant question raised by the decision is how it might affect workplace safety, privacy and discrimination laws, that generally encourage employers to investigate sensitive allegations or issues that often justify some degree of confidentiality.

As a practical matter, the absence of guaranteed confidentiality may dissuade employees from bringing concerns to HR’s attention (a consequence previously recognized by the Board. Such reluctance may unreasonably expose employers to liability because of the increased difficulty with recognizing and remedying unlawful behavior at its outset.  

While this decision will, in all likelihood, complicate efforts to investigate allegations of harassment, discrimination, and other unlawful behavior, it appears to be an attempt,  similar to the recent social media and at-will employment cases, to enhance the Board’s oversight of non-unionized workplaces where employers are (at least as perceived by the current Board) more likely to infringe upon an employer’s Section 7 rights (.i.e., the right to organize, participate in concerted activity and collectively bargain).

In light of the holding in Banner, employers should consider reviewing their investigatory procedures, assessing the need for confidentiality on a case-by-case basis and ensuring that the decision to maintain confidentiality is properly documented.