In a prior post, I had discussed the importance of properly investigating allegations of sexual harassment.  Now, the National Labor Relations Board (NLRB) has added a related issue to consider: When can employers prohibit employees from discussing ongoing investigations?

In its July 31, 2012 decision in Banner Health Systems, d/b/a Banner Estrella Medical Center and James A. Navarro, the NLRB held that Banner Health’s ongoing policy to instruct employees not to discuss ongoing investigations of employee misconduct with other employees was unlawful.  This decision was grounded in the finding that Banner Health did not have business interests that outweighed the employees’ rights under Section 7 of the National Labor Relations Act to engage in protected, concerted activity for mutual aid and protection.

In Banner, the employer’s human resources consultant routinely informed employees when they complained of employee conduct in violation of company policies or law that they should not discuss the matter with other employees while the investigation was ongoing.  Banner Health based its prohibition on its “generalized concern over protecting the integrity of its investigations;” however, the NLRB found Banner Health’s justification unpersuasive and insufficient to override employee rights under Section 7, which states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment…”

Notwithstanding the ultimate decision in Banner, the NLRB gave some examples of situations which could justify requiring employees to refrain from discussing the underpinnings of an ongoing investigation if:

  • A witness needs protection;
  • Evidence is at risk of being destroyed;
  • Testimony is in danger of being fabricated; or
  • There is a need to prevent a cover-up.

Of course, the foregoing would have to be evaluated in the context of the overall circumstances attendant to the investigation at issue.  Accordingly, in-house counsel should review existing confidentiality and investigation policies, practices and procedures to make sure that investigators properly assess whether or not prohibiting employees from discussing an investigation is necessary, appropriate and legal.