Requiring Employee Confidentiality of Investigation is Unlawful, Says NLRB
In a prior post, I had discussed the importance of properly investigating allegations of sexual harassment. Now, the National Labor Relations Board (NLRB) has added a related issue to consider: When can employers prohibit employees from discussing ongoing investigations?
In its July 31, 2012 decision in Banner Health Systems, d/b/a Banner Estrella Medical Center and James A. Navarro, the NLRB held that Banner Health’s ongoing policy to instruct employees not to discuss ongoing investigations of employee misconduct with other employees was unlawful. This decision was grounded in the finding that Banner Health did not have business interests that outweighed the employees’ rights under Section 7 of the National Labor Relations Act to engage in protected, concerted activity for mutual aid and protection.
In Banner, the employer’s human resources consultant routinely informed employees when they complained of employee conduct in violation of company policies or law that they should not discuss the matter with other employees while the investigation was ongoing. Banner Health based its prohibition on its “generalized concern over protecting the integrity of its investigations;” however, the NLRB found Banner Health’s justification unpersuasive and insufficient to override employee rights under Section 7, which states:
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