NLRB Places Confidentiality of Investigations at Risk
In a 2-1 decision, the National Labor Relations Board in the case of Banner Health System v. James Navarro, ruled that an employer violated the National Labor Relations Act by asking the employee not to discuss the details of his complaint with other employees while it was under investigation. The NLRB ruled that the company’s generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employee’s Section 7 rights, which allows the employee to engage in concerted activities for their mutual aid and protection. The Board did indicate that there were circumstances where a request for confidentiality may be legitimate, including:
- Where witnesses may need protection
- Where evidence is in danger of being destroyed
- Where testimony is in danger of being fabricated
- Where the is a need to prevent a cover-up
It made no difference to the court whether or not the “rule” was merely a suggestion or whether it had the potential of discipline attached to it. Simply requesting the confidentiality was enough to violate the Act.
As one of its penalties, the company was required to post the following notice:
Note: The Board also reminded employers that companies cannot restrict information such as salaries, disciplinary action, etc. without also violating Section 7. Employers are also advised to document and analyze why it may need to request confidentiality in any investigation. Finally, there is a possibility that this determination by the NLRB can be reversed by one of the circuit courts, or if things change after the November election.
Banner Health System d/b/a Banner Estrella Medical Center (28‑CA‑023438, 358 NLRB No. 93) Phoenix, AR, July 30, 2012.