According to a recent decision of the National Labor Relations Board, employers must have a justification to require confidentiality during internal investigations, and blanket rules requiring confidentiality due to a “generalized concern” with protecting the integrity of an investigation violate Section 8(a)(1) of the National Labor Relations Act. This decision applies to both union and non-union employees, as the Board held that the employer has the burden to show that its “legitimate business justification” for confidentiality outweighs an employee’s right to engage in concerted action under Section 7 of the Act.
In Banner Health System d/b/a Banner Estella Medical Center and James A. Navarro, case no. 28-CA-023438, 358 N.L.R.B. No. 93 (2012), a human resources consultant followed an “Interview of Complainant Form” while conducting investigatory interviews. The form included an instruction that employees making internal complaints (and arguably participating in an internal investigation) not discuss the complaint with other employees while the matter was under investigation. The HR consultant testified that she routinely gave the confidentiality instruction, although she did not do so in every case. The employer defended its practice, stating that the instruction was justified by its concern with protecting the integrity of the investigation. The Board held that this “blanket approach” violated the Act because it was an unlawful restraint on an employee’s Section 7 rights.
At first blush, the decision seems to have sweeping consequences. However, it does not represent a general prohibition on ‘all’ confidentiality instructions, such as those that might be ‘necessary’ during an internal investigation. Indeed, the decision has a limited application in several important ways. First, employers may still require confidentiality if they can provide a specific, legitimate business justification, such as (1) protecting witnesses; (2) preventing destruction of evidence; (3) preventing the fabrication of testimony; and (4) preventing a cover-up. Second, as Section 7 does not protect the rights of managerial or supervisory employees, this decision does not affect an employer’s right to require confidentiality from those employees. Third, employers may still protect the integrity of an investigation by sequestering employees until they have had a chance to interview them.
In light of this decision, employers should review their policies and forms to eliminate any blanket confidentiality requirements and revise them to comply with the Board’s newly announced position. Employers also should evaluate each case to determine whether confidentiality is justified before providing an instruction. Then, in those cases where justification exists, employers should tailor their confidentiality instructions.