Employers who routinely direct employees not to discuss internal
investigations should be prepared to demonstrate that
confidentiality is necessary to further a legitimate business
interest, following the July 30, 2012, decision of the
National Labor Relations Board ("the Board") in
Banner Health System, 358 N.L.R.B. No. 93 (July 30, 2012).
The Board found that the employer violated the National Labor
Relations Act ("NLRA" or "the Act") by asking
an employee who was the subject of an internal investigation to
refrain from discussing the matter while the employer conducted the
investigation. The 2-1 decision is another in a recent trend of
decisions requiring nearly all private-sector employers to
consider carefully how they interact with their employees,
regardless of whether those employees are represented by a
union. Member Brian Hayes dissented.
The employer, Banner Health System, provided its human resources
employees with an "Interview of Complainant Form" to use
when interviewing employees as part of an internal investigation.
(While the form was titled "Interview of Complainant
Form," it apparently was also used for interviews of the
subjects of complaints.) One of the bullet points under
"Introduction for all interviews" noted that employees
should be told not to discuss ongoing investigations. Although the
form was never provided to employees, one human resources manager
testified that she frequently, but not always, instructed employees
not to discuss the investigation.
Members Richard Griffin and Sharon Block concluded that such an
instruction violated Section 8(a)(1) of the Act because the
statement, "viewed in context, had a reasonable tendency to
coerce employees, and so constituted an unlawful restraint on
Section 7 rights." The 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."
In its ruling, the Board sustained objections to the
administrative law judge's determination that the prohibition
on discussing ongoing investigations was justified by the
employer's concern in protecting the integrity of the
investigations. The Board rejected such a "blanket
approach" justification. Instead, the Board noted that
the employer had the burden "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 Board found that the general assertion of
protecting the integrity of an investigation "clearly failed
to meet" that burden.
Member Hayes dissented on the basis that the instruction not to
discuss the investigation was merely a "suggestion"
rather than an actual rule prohibiting discussions of open
investigations. He distinguished one of the cases relied on by
the majority by noting that, in that case, the employer had
actually threatened discipline and discharged an employee at least
in part for discussing matters under investigation.
The majority rejected Member Hayes' conclusion that the
instruction was only a suggestion because it appeared as part of
the introduction "for all interviews" and was given in
most interviews. On the basis of those facts, the Board
concluded that the instruction or rule had the tendency to coerce
employees against exercising their Section 7 rights. Further,
the majority noted that a supervisor's instructions carry
sufficient weight to make a statement unlawfully coercive even
without actual discipline or the threat of discipline.
The Board's Banner Health decision applies equally to
unionized and nonunion settings. The decision, however, is not a
total prohibition on asking employees for confidentiality during an
internal investigation. However, employers who do ask for
confidentiality should be prepared to establish that
confidentiality is necessary to protect a witness, prevent the
destruction of evidence, preserve testimony, prevent a coverup, or
further another legitimate business interest. In light of the
Board's Banner Health decision, employers should
consider reviewing their internal investigation policies,
appropriately revising forms that may be used, and discussing the
decision with their human resources professionals in order to avoid
potential violations of the NLRA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.