Legal Alert: NLRB Rejects Employer's Confidentiality Requirement for Internal Investigations

Executive Summary:  In a 2-1 decision, the National Labor Relations Board (NLRB) held that an employer's efforts to protect the integrity of its internal investigations by instructing employees involved in the investigations not to discuss the matter with co-workers violates the National Labor Relations Act (NLRA).  See Banner Health System, Case 28–CA–023438 (July 30, 2012).    

In Banner Health, a human resources consultant routinely asked employees who had made an internal complaint not to discuss the matter with their co-workers while the employer was investigating the complaint.  The Board stated that to justify a prohibition on employee discussions of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees' Section 7 rights to engage in protected concerted activity.   

Here, the Board held that the employer's generalized concern with protecting the integrity of its investigations was insufficient to outweigh its employees' Section 7 rights.  According to the NLRB, to justify such a prohibition, an employer is required make an individualized assessment of each investigation to determine whether: 

1. any witnesses need protection;
2. evidence is in danger of being destroyed;
3. testimony is in danger of being fabricated, or
4. there is a need to prevent a cover up. 

The Board held that the employer's "blanket approach" failed to meet these requirements and, accordingly, violated Section 8(a)(1) of the Act.  

Employers' Bottom Line: 

In an effort to reduce gossip and ensure witnesses do not compare stories, employers often include confidentiality provisions similar to that found unlawful in Banner Health as part of their internal investigation procedures.  In light of the Board's decision, which impacts all types of internal investigations, employers should review their policies and procedures regarding confidentiality of investigations. 

If you have any questions about this decision or other labor or employment related issues, please contact the FordHarrison attorney with whom you usually work.