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NLRB Holds That Blanket Policy Prohibiting Employees From Discussing Ongoing Investigations May Unlawfully Restrain Section 7 Rights

Published by on November 21, 2012

In Banner Health Systems d/b/a Banner Estrella Medical Center and James A. Navarro, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board (“NLRB”) held that an employer’s policy requiring employees to maintain confidentiality regarding workplace investigations may violate the National Labor Relations Act (“the Act”).   The holding in Banner applies to most […]

In Banner Health Systems d/b/a Banner Estrella Medical Center and James A. Navarro, 358 NLRB No. 93 (July 30, 2012), the National Labor Relations Board (“NLRB”) held that an employer’s policy requiring employees to maintain confidentiality regarding workplace investigations may violate the National Labor Relations Act (“the Act”).   The holding in Banner applies to most private sector employers, regardless of whether the employer’s workforce is unionized.  More after the break.

In Banner, the employee refused to follow his supervisor’s instructions.  During an investigation of the employee’s conduct, the employer instructed the employee not to discuss the matter with co-workers.  The employer also had established written confidentiality and interview procedures that prohibited employees from discussing investigations or private employee information, such as salary information.  The NLRB decided that the employer’s general policy prohibiting employees from discussing ongoing investigation or other employment information violated Section 8(a)(1) of the Act by unlawfully restraining Section 7 rights.  In so holding, the NLRB reasoned that the employer’s “generalized concern with protecting the integrity of its investigation” was not a sufficient legitimated business concern to overcome its employees’ protected right to discuss the terms and conditions of their employment.

The NLRB acknowledged that there are situations that could provide a legitimate business justification requiring employee confidentiality during an ongoing investigation that outweigh employees’ rights under Section 7.   Under the analysis in Banner, the need for confidentiality should be evaluated on a case-by-case basis and could be justified by the need to protect a witness, protect evidence from destruction, prevent fabricated testimony, or prevent a cover up.

To review the full decision and order in Banner, click here.

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