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NLRB Finds Blanket Confidentiality Provision for Workplace Investigations Violates the NLRA

August 31, 2012

The National Labor Relations Board (the “NLRB”) recently issued a troubling decision, Banner Health System d/b/a Banner Estrella Medical Center, calling into question a common practice of employers requiring employees to maintain the confidentiality of workplace investigations. 

Like many employers, when interviewing employees making a complaint, the employer’s human resources agent asked employees not to discuss the matter with their coworkers while the investigation is ongoing.  The Board found this problematic, and stated that to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights (which allow employees to engage in concerted activities for mutual aid and protection). The employer argued that its prohibition was justified by its concern with protecting the integrity of its investigations.  The Board found, however, that a generalized concern with protecting the integrity of its investigations is insufficient.  It held that an employer must first determine, in each specific investigation, whether (1) 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 a blanket approach will not meet this requirement, and, therefore, such approach violates the National Labor Relations Act per se.

Lessons Learned:  Most employers value the confidentiality of workplace investigations.  Employers have an interest in ensuring that the integrity of the investigation is not compromised by collusion or threats.  Moreover, confidentiality allows the complaining party to be protected.  This decision, however, requires employers to have a particularized reason to ask for confidentiality during each specific investigation.  According, employers should review their handbooks and policies to ensure they (1) do not have a blanket policy regarding confidentiality of workplace investigations; but also (2) reserve the right to request confidentiality should it be necessary in a particular situation to protect employees’ privacy or to prevent retaliation, collusion, cover-up or fabrication of evidence.