As we have warned recently, the National Labor Relations Board has aggressively expanded its efforts to find violations of employees’ Section 7 rights, even in areas well beyond labor disputes. We have highlighted opaque and contradictory guidance on social media policies, the assault on at-will employment policies, and a rejection of a common off-duty access policy. This week, the NLRB again showed its desire to invalidate common policies even in the absence of any union activity, employer coercion, or Section 7 activity whatsoever. In Banner Health Systems, the Board found a violation of the National Labor Relations Act because, in order to protect the integrity of her investigation, one of the Arizona hospital’s HR officers asked an employee not to discuss the matter under investigation with co-workers.
Like most HR professionals, the hospital’s HR staff made this request as a matter of course in all of its workplace investigations. The Board ordered Banner to cease enforcing this “rule.” It concluded broadly that employers could only request that employees not discuss a matter under ongoing investigation if the employer had one of several “legitimate and substantial” justifications. Unfortunately, the justification of protecting the investigation’s integrity was not one of the Board’s justifications.
The case arose when a hospital technician refused to follow his supervisor’s orders to clean surgical instruments with hot water from a coffee machine while a steam pipe was broken at the hospital. The hospital investigated the technician’s failure to sterilize equipment that day and disciplined him for insubordination. In apparent retaliation, the technician then filed an unfair labor practice charge against the hospital, alleging that the hospital’s HR representative had asked him during the investigation interview not to discuss the investigation with his co-workers while it remained ongoing. The technician alleged that this informal request—which did not contain a threat of discipline or lead to any discipline—violated his and other employees’ right to engage in protected concerted activity under Section 7 of the Act.
The Board majority seized on Banner’s use of a preprinted interview form with “instructions for all interviews” that contained a request that employees not discuss the investigation with others. It found that this form created a “rule” that improperly prohibited employees from discussing HR investigations. The majority rejected this “blanket approach” and held that an employer could only make such a request on a case-by-case basis after first determining that “witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” Member Hayes dissented, noting that even the Board’s Administrative Law Judge had declined to find any such “rule” existed and had found instead that the HR officer only made a “suggestion” that the employee keep the investigation confidential.
Notably, this unfair labor practice charge was filed by an unrepresented, individual employee, not a union or a lawyer, and contained no allegations of any union activity. While the Board’s remedy only requires the hospital to post a notice, the decision nonetheless upends another sensible and near-universal policy followed by employers and HR professionals alike. We encourage employers and HR professionals to review their internal investigation procedures to determine if any adjustments in those procedures are necessary in light of this troubling decision.