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By: David Cole
On July 30, the NLRB issued a decision in the case of Banner Estrella Medical Center, which highlights the dangers of blanket instructions or policies prohibiting employees from discussing internal investigations. The company’s human resources manager routinely asked complaining employees not to discuss the matter with their coworkers while the company’s investigation was ongoing. The company did not have a formal policy, but this instruction was listed among several bullet points on its standard interview form.
The NLRB stated that, in order to justify a prohibition like this, an employer must show that it has a “legitimate business justification” that outweighs employees’ Section 7 rights to engage in concerted activity. The company argued that the prohibition was justified by its “concern with protecting the integrity of the investigation,” but the NLRB held this was not enough. Instead, the NLRB said that employees have a right to discuss their workplace complaints, and that before requiring confidentiality the company needed to first determine whether any witnesses actually needed protection, whether any evidence was in danger of being destroyed, or whether testimony was in danger of being fabricated. The NLRB determined that the company’s “blanket approach” did not meet these requirements and, therefore, violated Section 7 of the NRLA.
This is a good reminder for employers to examine their practices and policies regarding confidentiality of internal investigations. Before prohibiting employees from discussing pending investigations, employers must consider whether there is a real need for confidentiality based on risks of witness coercion, destruction of evidence, or other legitimate business concerns. Blanket prohibitions against discussion of internal investigations without this type of individualized assessment will likely violate Section 7 of the NRLA.