Hunton Employment & Labor Perspectives

The NLRB has again asserted its willingness to encroach upon employers’ long standing legitimate employment policies in a non-unionized workforce.  In Banner Health System, 358 NLRB No. 93 (July 30, 2012), the Board held that a blanket policy prohibiting an employee from discussing an ongoing investigation violates section 8(a)(1) of the National Labor Relations Act.

Employers typically request, and some in fact require, confidentiality among its employees when conducting workplace investigations.  After all, employers have a duty under many laws to investigate certain types of workplace issues and these investigations are only as effective as the integrity with which they are conducted.  Thus, up until now, it was deemed reasonable, if not essential, for employers to direct employees not to discuss an ongoing investigation with other employees so as to prevent compromised evidence.  Not so fast, the NLRB has now said in its Banner decision.

In Banner, the employer’s human resource consultant routinely asked employees making a complaint not to discuss the matter with their coworkers while the investigation was on-going.  The ALJ, finding no 8(a)(1) violation occurred, stated that the “suggestion is for the purpose of protecting the integrity of the investigation” and thus the employer had a legitimate reason for making the request for confidentiality.  The Board overruled the ALJ’s finding stating that “[t]o 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.”  While an employer would presumably rely on their need to preserve the integrity of the investigation, such a blanket concern is insufficient to justify the requirement for confidentiality said the Board.  Instead, the Board has held that an employer must make an individualized analysis and “first determine whether in any give[n] investigation witnesses need[ed] 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 Banner dissent argued that it would have found no violation because the company did not promulgate an actual work rule but instead offered a mere “suggestion” that the employee not discuss the matter under investigation.  The Board rejected this argument stating that “the law does not require that a rule contain a direct or specific threat of discipline in order to be found unlawful.”

It is too soon to predict whether the Board’s decision will be upheld should the employer appeal to the federal appeals court.  In the meantime, employers, in unionized and non-unionized workforces alike, should be mindful that if they continue to require, or even suggest, confidentiality during workplace investigations, the Board may require them to make an individualized showing that confidentiality was necessary to preserve the integrity of the investigation in that particular circumstance.