CLIENT UPDATE

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Month 00, 2009

NLRB Finds a NLRA Violation in Asking Employees to Refrain From Discussing Internal Investigations

On July 30, 2012, the National Labor Relations Board (the “Board”) ruled that a hospital’s blanket policy forbidding employees from discussing ongoing investigations violated Section 8(a)(1) of the National Labor Relations Act (the “NLRA”).  In Banner Health System, 358 N.L.R.B. No. 93 (July 30, 2012), the Board found that a blanket policy requiring confidentiality that was not tied to the specific investigation was too broad to satisfy a legitimate business interest in protecting the investigation.

Banner Health System had implemented an “Interview of Complainant Form” for human resource employees to use when interviewing employees during an internal investigation. In part, the Form required that the interviewees be told that they may not discuss the ongoing internal investigation. Banner argued that such a policy was necessary to guard the integrity of the investigation. The Administrative Law Judge who first heard the case agreed, finding that conversations between employees regarding the investigations had the potential to contaminate the investigations.

The Board, however, found that such a broad policy had the potential to coerce employees from exercising their Section 7 rights to engage in concerted activity, and thus violated Section 8(a)(1) of the NLRA.  According to the Board, a policy prohibiting employees from discussing internal investigations would have to be more narrowly tailored to justify any legitimate business interest in protecting the integrity of the investigation. The employer would have to assess investigations on an individual basis to see whether the specific investigation requires that employees refrain from discussing the investigation.

The Board set out a number of factors which employers can use to justify a confidentiality policy, including: the need for witness protection; the danger of destruction of evidence; the danger of fabricated testimony; and the need to prevent a cover up.  If employers can demonstrate that these factors were present in a given investigation, they can justify requiring confidentiality in that investigation.

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In light of the Board’s Banner Health decision, both unionized and non-unionized employers should consider reviewing and revising their internal investigation procedures to avoid blanket confidentiality policies.

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