This week, in Banner Health System d/b/a Banner Estrella Medical Center and James Navarro, case number 28-CA-023438, the National Labor Relations Board (“NLRB”) found unlawful the common human resources practice of asking an employee who makes a workplace complaint not to discuss the matter with his co-workers during the employer’s investigation.

In Banner, the employee, Navarro, made an internal complaint regarding the manner in which he was directed to perform his duties when the equipment he normally used was not functioning properly. Citing health and safety concerns, Navarro refused to follow his supervisor’s instructions and thereafter received “coaching” on the basis of insubordination.

In connection with this incident, Navarro met with the employer’s human relations consultant who was charged with investigating the matter. During the interview, the consultant requested that Navarro not discuss the matter with co-workers while the investigation was ongoing. The NLRB also noted that the human relations consultant used an “Interview of Complainant Form” (not given to Navarro) that contained such an instruction under the heading “Introduction for all interviews.”

In a 2-1 decision that reversed a portion of an administrative law judge’s decision, the NLRB determined that the employer maintained a “blanket” rule of providing confidentiality directives in connection with internal complaint interviews that violated its employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act. Section 7 includes the right to communicate with co-workers about the terms and conditions of employment. Here, the employer’s “generalized concern with protecting the integrity of its investigation” was found not to outweigh employees’ Section 7 rights.

The dissenting board member characterized the human relations consultant’s confidentiality instruction to be a permissible “suggestion” as opposed to a prohibited rule or policy because the instruction was neither binding on employees nor accompanied by any threat of discipline for noncompliance.

According to Banner’s majority, however, an employer may prohibit employee discussion about an ongoing investigation only if it has a specific legitimate business justification – determined on a case-by-case basis – for a confidentiality instruction. Such a justification might include, but is not limited to, the following types of concerns: a witness requires protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or a cover-up needs to be prevented.

Additionally, the NLRB confirmed, without significant discussion, the administrative law judge’s determination that a portion of the employer’s standard employee confidentiality agreement interfered with employees’ Section 7 rights. The offending provision prohibited employees from discussing other employees’ private information, such as wages and discipline, unless such information was provided by the subject employee.

In light of the NLRB’s decision in this matter, employers should review and revise their formal and informal internal complaint procedures to ensure confidentiality directives are provided only as necessary on an individualized basis. Though it is unclear how the NLRB’s ruling will be applied in the future, the decision may be applied to other types of complaints, such as those involving hostile work environment allegations and other kinds of employee misconduct. Therefore, employers should review and revise, as necessary, their policies and employee agreements addressing confidentiality to make sure such agreements or policies do not interfere with employees’ rights to engage in concerted activity under Section 7 of the National Labor Relations Act.