The National Labor Relations Board (NLRB or Board) held this week that protecting the integrity of an internal investigation is not an adequate reason for a policy requiring confidentiality from complaining employees.
In Banner Estrella Medical Center (case number 28-CA-023438), decided on July 30, the Board held that an employer violated the National Labor Relations Act (the Act) by prohibiting its employees from discussing complaints lodged with their employer during the complaint investigation.
The Administrative Law Judge had ruled that the employer’s confidentiality requirement was consistent with Board precedent, which requires employers to demonstrate a legitimate business justification to prohibit employee discussion of ongoing investigations. In this regard, the judge found that because inter-employee discussions could taint an ongoing investigation, the employer’s request was justified.
The Board overruled the judge and held that the employer’s “blanket approach” to confidentiality violated Section 8(a)(1) of the Act. Rather, the Board held, it was the employer’s “burden” to “‘first determine whether in any give[n] investigation witnesses need[ed] protection, any evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” (quoting Hyundai America Shipping Agency, 357 NLRB No. 80 (2011)).
Thus, employers should not enforce a general confidentiality requirement when it comes to employee complaints and attendant investigations. Instead, before requiring confidentiality, employers must evaluate each investigation on a case-by-case basis ─ considering the factors set forth above ─ to determine whether confidentiality is, in fact, required to adequately investigate any given complaint.