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.
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