NLRB Says “No” to Confidentiality in Workplace Investigations?

The National Labor Relations Board recently ruled that healthcare provider Banner Health was not justified in enforcing a rule that prevented workers from discussing an internal investigation with colleagues. (The board said that such a rule violated employee rights to engage in protected concerted activity.)

It’s an important decision affecting all businesses, because asking employees to maintain confidentiality in workplace investigations is a common technique for ensuring the integrity of those investigations.

What to make of this ruling? For your reference, a roundup of legal updates on the topic:

Internal Company Investigations: NLRB Continues Assault on Non-Union Workplace Policies and Procedures (Dinsmore & Shohl LLP):

“The National Labor Relations Board’s aggressive attack on employment policies and procedures outside the union workplace continues in earnest… [T]hat trend continued with the NLRB’s decision in Banner Health System, which further extends the reach of the National Labor Relations Act into the realm of internal workplace policies via investigations of employee misconduct.” Read on>>

NLRB Holds Hospital’s Confidentiality Rule Violated the NLRA (Fox Rothschild):

“The Administrative Law Judge had ruled that the employer’s confidentiality requirement was consistent with Board precedent, which requires employers to demonstrate a legitimate business justification to prohibit employee discussion of ongoing investigations.” Read on>>

NLRB Rejects Employer’s Confidentiality Requirement for Internal Investigations (Ford & Harrison LLP):

“In Banner Health, a human resources consultant routinely asked employees who had made an internal complaint not to discuss the matter with their co-workers while the employer was investigating the complaint. The Board stated that to justify a prohibition on employee discussions of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights to engage in protected concerted activity.” Read on>>

NLRB Strikes Down Employer’s Rule Requiring Confidentiality of Complaints during Investigation (Ballard Spahr LLP):

“Specifically, the NLRB held that it was the employer’s burden before requiring confidentiality to first assess the situation and determine if confidentiality was required. The Board stated that issues such as witness protection, evidence destruction, fabrication of testimony, or danger of a cover-up would be legitimate reasons for an employer to require confidentiality to maintain the integrity of its investigation. The Board concluded, however, that a blanket mandate of confidentiality in all investigations improperly encroached on employees’ rights under the NLRA and thus the employer’s practice violated the act.” Read on>>

In Another Attack on General Employment Policies, NLRB Nixes Confidential Workplace Investigations (Franczek Radelet P.C.):

“Member Hayes dissented, noting that even the Board’s Administrative Law Judge had declined to find any such ‘rule’ existed and had found instead that the HR officer only made a ‘suggestion’ that the employee keep the investigation confidential.” Read on>>

NLRB Ruling on Confidentiality Directives Impacts All Employers (Lowenstein Sandler PC):

“In light of the NLRB’s decision in this matter, employers should review and revise their formal and informal internal complaint procedures to ensure confidentiality directives are provided only as necessary on an individualized basis. Though it is unclear how the NLRB’s ruling will be applied in the future, the decision may be applied to other types of complaints, such as those involving hostile work environment allegations and other kinds of employee misconduct.” Read on>>

Confidentiality Directives May Violate The NLRA (Akerman Senterfitt):

“An employer’s policy must be more narrowly tailored to prohibit employee discussion about an ongoing investigation. An employer may do so only if it has a specific legitimate business justification for confidentiality tied to the individual investigation. This must be determined on a case-by-case basis, which might include, but is not limited to: witness protection; evidence is in danger of being destroyed, testimony is in danger of being fabricated, or a cover-up needs to be prevented.” Read on>>

Big Deal? How the NLRB’s Recent Decision Limits the Confidentiality of All Employer HR Investigations (Jackson Walker):

“In all situations that call for an internal investigation, employers should document their pre-investigation efforts making sure to, at the very least, describe the issues, the laws and privacy concerns involved, the evidence, if any, at risk and in need of protection, the identity of the investigator (e.g., HR, in-house or private counsel, outside forensics investigator), and the justification for conducting the investigation in the manner finally chosen.” Read on>>

NLRB Challenges Long-established Investigation Best Practice (Proskauer Rose LLP):

“Employers should continue to follow best practices with regard to internal investigations, including to maintain them in as confidential a manner as possible. To address the NLRB’s concerns, an investigator can … consider whether, in light of Banner Health System, a modified direction to witnesses is warranted or whether an acknowledgement form should be presented to the witnesses that advises the witness about confidentiality and the reasons for it but that also indicates the witness is not precluded from discussing terms and conditions of employment with others…” Read on>>

Act Now Advisory: Requiring Confidentiality During HR Investigations May Violate National Labor Relations Act (Epstein Becker & Green, P.C.):

“The Board’s decision applies to both unionized and non-unionized workplaces. Thus, all employers, not just those with unionized operations or facing organizing drives, may face unfair labor practice charges alleging that their policies calling for confidentiality concerning investigations unlawfully coerce employees.” Read on>>

NLRB to Employers: Policy Prohibiting Employees From Discussing Workplace Investigations With Co-Workers May Violate Section 7 of the NLRA (Leonard, Street and Deinard):

“In his dissent, Board Member Hayes found nothing wrong with the employer’s practice because the affected employees were merely asked not to discuss ongoing investigations and were not threatened with discipline for failing to do so.” Read on>>

The NLRB Requires “A Legitimate and Substantial Justification” for Employer Confidentiality Requests (Miller & Martin PLLC):

“What this decision means for employers is that rather than merely having a blanket general rule that all employees involved in any type of internal investigation whatsoever will be asked to keep the information they possess about the same ‘confidential/do not share it with others,’ they will instead need to analyze the circumstances surrounding each investigation and make a case-by-case determination as to whether or not there is a ‘legitimate and substantial need to request confidentiality here?’” Read on>>

NLRB Tries to Lift Cone of Silence (Foley & Lardner LLP):

“Though this NLRB opinion is contrary to common legal advice to employers and could eventually be reversed by a court, employers should be cautious in their current approach on the issue of confidentiality. All employers, regardless of whether they have a union workforce or not, should review their policies with an eye toward avoiding unfair labor practice charges. At a minimum, instead of absolute bans on discussing ongoing investigations, companies would be advised to perform an individualized analysis of each situation, in accord with the factors described above.” Read on>>

Mum’s Not Necessarily the Word: NLRB Complicates Employers’ Internal Investigations (Littler):

“While the Board’s holding is significant, it is important not to overreact. Banner Health does not signify a total prohibition on requiring employee confidentiality during an internal investigation. Rather, the Board’s holding only precludes employers from maintaining a blanket confidentiality rule generally applicable to all internal investigations.” Read on>>

NLRB Maintains Focus on Workplace Policies: Board Holds That Request That Employee Not Discuss Employer’s Ongoing Investigation Violates the National Labor Relations Act (Ropes & Gray LLP):

“The NLRB’s interest in workplace policies, and increased enforcement in relation to the same, will undoubtedly continue. Both the decision in Banner Health System and the NLRB’s social media guidance make clear that the NLRB will apply a high level of scrutiny in evaluating the extent to which workplace policies might be viewed by employees as suppressing or restricting their rights under Section 7 of the NLRA.” Read on>>

NLRB Takes Aim at Policies Designed to Ensure Confidentiality of Internal Investigations (Mintz Levin):

“Besides adding yet another layer of administrative complexity to employer’s internal operations, the Board’s ruling may actually discourage employees from complaining if they fear the absence of confidentiality, which in turn would adversely affect the employers’ ability to resolve workplace issues like discrimination, harassment, retaliation and other types of serious wrongdoing – issues, that if left unresolved, may prove costly to employers.” Read on>>

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