Back in August, we alerted you to an NLRB decision in Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438, in which the Board held that an employer’s blanket rule requiring employees to maintain the confidentiality of pending internal company investigations violated the employees’ Section 7 right to
In recent months, the National Labor Relations Board (NLRB) has grabbed the attention of many employers, union and non-union alike. NLRB decisions and guidance documents have found that a number of very common company policies and practices violate employee rights under Section 7 of the National Labor Relations Act. Section 7 protects the rights of employees to communicate with co-workers about wages and other working conditions and to act together, including by supporting or joining unions.
In a decision on July 30, 2012, the NLRB continued the trend of finding legal fault with practices that may sound very familiar to you. The decision is Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438. One of the issues in the case was the company’s routine practice when conducting internal investigations to ask the complaining employee and all witnesses interviewed not to discuss the matter with co-workers while the investigation was ongoing. Sound familiar?
The employer argued that it had a right to request employees not to discuss ongoing investigations in order to protect the integrity of the investigation. This is a common employer concern. Widespread discussion of an ongoing investigation can compromise future interviews by making people aware of the issues before they are talked to. Talk in the workplace about an ongoing investigation could also cause employees to feel intimidated about cooperating. The NLRB found the employer practice an illegal restriction on the rights of employees to discuss workplace issues among themselves. The NLRB considered but rejected the employer’s argument that the caution about confidentiality was merely a request, not a mandatory rule. The NLRB left the door open for an employer in some cases to justify a prohibition on employee discussions of ongoing investigations. But, the NLRB said to justify that restriction, the employer would have to be able to show a specific legitimate business justification, not a generalized concern. As an example, the Board said that the employer should be required "to first determine whether in any given investigation witnesses needed 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."
The NLRB’s position puts employers in a tough spot. How do you protect the integrity of an ongoing investigation without asking witnesses to maintain confidentiality at least while the investigation is ongoing? Employers should treat each investigation on an individualized basis. If a decision is made to request confidentiality during an investigation, the employer should document its specific business reason for requesting confidentiality in that case.…