NLRB Employee Confidentiality

NLRB Employee ConfidentialityIn 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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In a prior post, we had reminded you that certain changes to the National Labor Relations Act (NLRA) regulations would become effective on April 30. 

However, as of Friday, April 13, in a case brought by the U.S. Chamber of Commerce, the U.S. District Court of South Carolina decided to strike down the requirement to post notices informing employees of their rights to unionize under the NLRA.  The South Carolina federal court decided that the posting requirements exceeded the authority of the National Labor Relations Board (NLRB), the entity charged with enforcing the NLRA.  The D.C. Circuit Court of Appeals promptly followed, issuing an injunction putting the notice posting requirement on hold, pending the resolution of whether or not the NLRB had the authority to issue the notice posting requirement. 

As a result, yesterday afternoon, the NLRB announced that its regional offices would not implement the rule requiring posting of notices of NLRA rights while the appeal of the D.C. Circuit’s decision is pending. … Keep reading