This Summer, the National Labor Relations Board (“NLRB”) ruled that an employer’s policy and practice of requiring complaining employees and witnesses to maintain confidentiality during ongoing investigations was unlawful because it violated the employees’ rights under Section 7 of the National Labor Relations Act (the “Act”). Generally, Section 7 protects the rights of employees to communicate with each other about their employment, including wages and workings conditions, and to act together, including efforts to support and join a union.

Widespread discussion of an employer’s ongoing investigation is a common employer concern. Such discussions can compromise the integrity of an investigation by making potential witnesses aware of the issues before they have been questioned. They can also create mistrust and cause some employees to become fearful, less cooperative and measured in their responses to questioning.

In Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, an employer raised such concerns in its defense. 358 NLRB No. 93 (July 31, 2012). Specifically, the employer argued that requiring employees to maintain confidentiality was necessary to protect the integrity of its workplace investigations. The NLRB rejected the employer’s argument, stating that a generalized concern about the integrity of an investigation, without more, is not a sufficient business justification to overcome the employees’ Section 7 rights. The NLRB stated that, to justify such a restriction, an employer first would have to determine “whether…witnesses need 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 NLRB’s administrative ruling does not have the same force as a law and has not yet been tested in the courts. The ruling flies in the face of common sense because employers need confidentiality to ensure the integrity of workplace investigations. Employees need to feel secure that their concerns and/or statements will remain confidential, at least through the completion of an investigation.

With the election decided, we can expect the NLRB to continue to push its agenda, including this ruling on confidentiality during investigations. We continue to believe that confidentiality in EEO investigations and protection of employees from retaliation outweighs any potential NLRB challenge. However, employers should train their managers and human resource representatives to determine early on if an investigation will require blanket confidentiality and, if so, properly document the justification for such a need. The documentation will be critical in defending the employer against a possible unfair labor practice charge.

Obermayer attorneys are available to answer your questions and assist you in reviewing your company’s investigation policies and practices and in formulating new strategies to ensure that your company remains compliant with Section 7 of the Act.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.