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Allowable Confidentiality of Internal Investigations Narrows

Posted on August 16, 2012

Conducting investigations in the workplace may now be more difficult for employers thanks to a recent decision by the National Labor Relations Board (“Board”). The Board’s decision seriously limits employers’ ability to keep all types of internal investigations confidential. Instead, employers may only require employees to refrain from discussing complaints in certain types of investigations. Those circumstances are discussed below.

In Banner Health System, 358 NLRB No. 98 (July 2012), the company utilized an “Interview of Complainant Form” as part of its investigation process. The Form instructed employees to refrain from discussing internal complaints with coworkers during the investigation of the complaint. Generally, the human resources manager reiterated this instruction to the complaining employee during the employee’s interview. The substance of the complaint was irrelevant; Banner Health System required that employees keep all complaints and investigations confidential for the duration of the inquiry.

Upon review, a majority of the Board decided that Banner Health System’s broad confidentiality requirement unlawfully restrained employees’ Section 7 rights to, generally, discuss issues related to compensation, benefits or working conditions, thereby violating Section 8(a)(1) of the National Labor Relations Act. According to the Board, an employer must demonstrate a legitimate business justification that outweighs employees’ Section 7 rights to justify a prohibition on employee discussion of ongoing investigations. Banner Health System’s “generalized concern with protecting the integrity of its investigations” did not constitute a legitimate business justification that satisfied this condition. The Board instructed Banner Health System that before requiring employees to forgo discussing investigations, the company must determine whether the 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. A “blanket” confidentiality requirement did not meet those standards. Additionally, the Board decided that the human resources manager’s reiteration of the rule “had a reasonable tendency to coerce employees,” also restraining employees’ Section 7 rights. While Member Brian Hayes’ dissent pointed out that the instruction imposed no disciplinary ramifications, the majority explained that “the law … does not require that a rule contain a direct or specific threat of discipline in order to be found unlawful.”

Banner Health may change the investigation process for many employers who previously considered all internal investigations confidential and asked employees not to discuss the matter with co-workers. These requirements may now be considered overbroad. As employers know, confidentiality is a key part of any internal investigation. Accordingly, employers should review their internal investigation procedures and comply with the Board’s specific requirements, promoting confidentiality where a specific legitimate business justification exists. Many types of investigations will still give employers a legitimate business justification for confidentiality - sexual harassment, discrimination, and retaliation cases likely fit this requirement. Employers’ confidentiality provisions will need to be specifically tailored to these cases going forward.

If you would like to discuss this decision or how to tailor your internal investigation policies to comply with Banner Health, please contact any Knox Law Labor and Employment attorney at 814-459-2800.

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