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The National Labor Relations Board took another step into
territory most employers previously assumed was safe when it
decided on July 31 that a general rule requiring confidentiality
during an internal investigation into an employee complaint
constitutes an unfair labor practice.
In Banner Health System d/b/a Banner Estrella Medical
Center, a divided Board held 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." The 2-member
majority rejected Banner's argument that the prohibition was
justified by its interest in protecting the integrity of internal
investigations, and ordered Banner to post a notice that the policy
had been found to violate federal law.
A "blanket approach" to requiring confidentiality
during internal investigations will not suffice, the Board held.
Rather, an employer must consider each investigation individually,
and decide whether confidentiality is required because witnesses
need protection, evidence is in danger of being destroyed,
testimony is in danger of being fabricated, or there is a need to
prevent a cover-up.
Lesson for Employers
Employers should jettison any general policy against employees
discussing with each other ongoing investigations into employee
misconduct. This holds true even if the policy carries no threat of
discipline for violators. However, employers should continue to
insist upon confidentiality in connection with investigations into
particularly sensitive complaints, such as those of sexual
harassment, discrimination, or fraud. Moving forward, employers
should work with counsel in analyzing each investigation
individually to determine the level of confidentiality
required.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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