The National Labor Relations Board (Board or NLRB) ruled in its controversial Banner Health decision that employment policies that generally prohibit non-supervisory and non-management employees from discussing ongoing workplace misconduct investigations violate Section 8(a) (1) of the National Labor Relations Act (NLR) (http://www.nlrb.gov/national-labor-relations-act). The decision was premised on the NLRB’s interpretation of Section 7 of the NLRA. It opined that Section 7 grants both unionized and non-unionized employees the right to discuss discipline and disciplinary investigations involving their fellow employees and that a blanket rule prohibiting such discussions can be reasonably construed to interfere with employees in the exercise of these rights. A recent Advice Memorandum from the Board now gives additional guidance on when such rights may be limited.

According to the Banner Health decision, an employer may prohibit employees’ discussions about workplace investigations only if it demonstrates that it has a legitimate and substantial business justification that outweighs the Section 7 rights of its employees. This means from the Board’s perspective that an employer must show more than a generalized concern about the need to protect the integrity of its investigations. Instead, the Board requires that an employer “determine whether in any give[n] investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up.” The Board thus deems a blanket rule prohibiting employee discussions of ongoing workplace investigations to be invalid regardless of the employer’s actual practices because it does not take into account the employer’s burden to show on a case-by-case basis that it has a business justification for the requirement of confidentiality that outweighs employees’ Section 7 rights.

Should employers abandon employment policies that are meant to protect the integrity and efficacy of workplace investigations because of Banner Health? The answer should be “no” because even the Board recognizes that such policies, if properly drafted, have a legitimate and substantial business justification. The Board’s recent Advice Memorandum makes this clear.

In that Memorandum, issued by the NLRB’s Office of the General Counsel, dated January 29, 2013 and made public on April 16, the Board’s Associate General Counsel evaluated another employer’s employment policy that prohibited its employees from discussing ongoing workplace investigations in conjunction with the Banner Health decision. It specified:

“[Employer] has a compelling interest in protecting the integrity of its investigations.” In every investigation, “[employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.” To assist “[employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain strict confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

The Associate General Counsel concluded that the policy language in the first two sentences lawfully set forth the employer’s interest in protecting the integrity of its investigations, but that policy still violated Section 8(a)(1) because he deemed the last two sentences to be overbroad and indicative of interference with Section 7 rights since these do not take into account the employer’s burden to show on a case-by-case basis that the employer has a business justification for the requirement of confidentiality that outweighs employees’ Section 7 rights.

Most important, the Associate General Counsel also stated that the employer could modify the last two sentences of the policy to lawfully advise employees consistent with the Banner Health decision that: “[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.”

Hence, employers should not abandon employment policies that are meant to protect the integrity and efficacy of workplace investigation. Instead, they should review applicable policy language and modify the language as necessary so that it conforms to the recommendation contained in the Advice Memorandum.

Additionally, unless a court or the Board overturns Banner Health, an employer should only require and enforce strict confidentiality pertaining to workplace investigations and discipline employees who violate confidentiality obligations on a case-by-case basis. It should do so only if it can demonstrate for purposes of the particular investigation that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up,” or another legitimate and substantial business justification that outweighs the Section 7 rights of its employees.