On a February morning a hospital's heat, hot water and steam system was being repaired. Consequently, a sterilization technician could not use the normal large steam sterilizer used for labor and delivery instruments. As a result, the technician's supervisor directed him to use a Sterrad machine (a low temperature sterilizer that uses hydrogen peroxide as the sterilant) as a solution to the lack of steam issue. After questioning the use of the Sterrad machine as established protocol for sterilizing the labor and delivery instruments, the technician then was told by the lead tech to use hot water from the break room's coffee machine as the first step in the cleaning process.
Citing his concerns that these procedures were not established protocol and could endanger patients, the technician subsequently refused to use the Sterrad machine/coffee maker hot water procedure to sterilize the instruments. Based on that refusal, the technician was accused of insubordination by his supervisor who also complained to the hospital's human resources (HR) department. Finding no established procedure to support the Sterrad machine/coffee maker hot water sterilization technique, HR advised against taking corrective action. Instead, it was agreed that the technician would be given nondisciplinary coaching during which the technician was asked by the HR representative not to discuss the matter with his coworkers while the hospital's "investigation" was ongoing.
The National Labor Relations Board (NLRB) found this action violated Section 7 of the National Labor Relations Act (NLRA), which allows employees to engage in concerted activities for their mutual aid and protection. In its order, the NLRB found that a request could be made that an employee not discuss a pending investigation if the employer could show that it has a legitimate business justification that outweighs its employee's NLRA rights. One Board member dissented from part of the decision. The dissenting member believed that the request not to discuss the matter was a suggestion rather than a policy.
According to the NLRB's decision, the hospital's generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employee's NLRA rights. In order to justify a nondisclosure request, the hospital must determine for each investigation whether there is a particular need for the nondisclosure request; for example, witnesses in need of protection, evidence in danger of being destroyed, testimony in danger of being fabricated, or a need to prevent a cover-up. Absent a particular need for confidentiality, an employer generally cannot prohibit an employee from discussing the hospital's investigation of his or her actions with other employees.
An employer generally may not, without violating the NLRA, discipline or otherwise threaten, restrain or coerce employees because they engage in protected concerted activities. Consequently, when limitations are being imposed on an employee's right to discuss an investigation that could be construed as impacting the employee's right to engage in concerted activities for the employee's mutual aid and protection, providers should make a specific decision justifying the need for confidentiality.
The hospital also included in its confidentiality agreement a prohibition against sharing private employee information such as salaries and discipline. The NLRB left the administrative law judge's decision in place that prohibited the hospital from restricting employees from discussing salaries or disciplinary matters.