Within the last year or so, the National Labor Relations Board (NLRB) has taken a very active role in scrutinizing employer social media policies to make sure they aren’t reasonably construed to restrict employee concerted activity.  Starting several months ago, they expanded that scrutiny to examine at-will disclaimers and other employer policies for the same purpose.   Now, the Board has taken things to an even further level.

Just within the last few weeks or so, the Board has concluded that one of the most fundamental and longstanding employer practices – trying to preserve confidentiality during an internal workplace investigation – reasonably dissuades employees from exercising their rights under the National Labor Relations Act to talk about wages, hours and other terms and conditions of employment.

In Banner Health System d/b/a Banner Estrella Medical Center, case number 28-CA-023438, the employee, a hospital sterilization processing technician, expressed concerns to his supervisors and co-workers about the manner in which he was instructed to clean surgical instruments when the equipment he normally used was not working properly.  As part of the hospital’s investigation into the matter, the employee met with the hospital’s HR consultant.  During this meeting, the HR consultant asked the employee not to discuss the matter with his co-workers while she investigated.

As it turns out, the hospital’s internal investigation protocol included a directive that all employee interviews were to begin with a boilerplate instruction that their confidentiality was being requested.  Additionally, the hospital required that all employees sign a confidentiality agreement upon hire, which prohibits employees from discussing or disclosing such information as their salaries and disciplinary actions.

Ultimately, the complaining employee filed a charge against the hospital alleging, among other things, that the hospital’s confidentiality policies violate the NLRA.  Initially, things started off well for the Hospital.  The Administrative Law Judge (ALJ) ruled that the employer’s policies were consistent with Board precedent, which requires employers to demonstrate a legitimate business justification in order to lawfully prohibit employee discussion of ongoing investigations.  The ALJ concluded that the hospital’s concern with protecting the integrity of its investigations sufficiently justified its confidentiality policies.

However, on appeal, the NLRB disagreed, finding in a 2-to-1 decision that the hospital’s “generalized concern with protecting the integrity of its investigation” was insufficient to outweigh employees’ Section 7 rights.  The Board concluded that the hospital’s “blanket approach” of requesting confidentiality during all internal investigations improperly infringed on employees’ rights under the NLRA, even though employees were only asked and not ordered to maintain confidentiality, and violation of the rule carried no threat of discipline. While the Board did suggest that confidential investigations may be permissible if necessary to protect witnesses, prevent a cover-up, or minimize the danger of evidence being destroyed or testimony being fabricated, the Board’s opinion in Banner provided no further guidance on this point.

While there is some danger in being too reactive to everything the Board has been doing of late (particularly since some of their recent measures have been at least temporarily halted when subject to court challenge), employers remain wise to be mindful of the Board’s position on these issues.  The Board has now clearly indicated an intent to carefully review policies with ambiguous language which could be construed as restricting the rights of employees to discuss their working conditions.   Worse, employers might have to dodge two bullets in this fight, since it appears that the NLRB isn’t the only agency looking closely at employers trying to keep investigations confidential lately.

In a letter dated August 3, 2012, the Buffalo, New York office of the Equal Employment Opportunity Commission (EEOC) notified an employer that it would be expanding its investigation into a discrimination charge to include an examination of the employer’s policy of warning employees that discussing ongoing, internal harassment investigations with co-workers may result in discharge or discipline.  The EEOC characterized this as being a “flagrant” violation of Title VII.

At this point, there’s no way to tell if this position will be enforced by the EEOC on a national basis, but what is certain is that it is becoming increasingly dangerous for employers to try and do anything without potentially running afoul of the aggressive position that the NLRB and EEOC are taking these days.  Employers who wish to steer clear of both agencies’ crosshairs should review their policies carefully and consider consulting with competent legal counsel as to whether their language and practices may similarly put them at risk.  In addition, employers who choose to continue trying to keep investigations confidential should be certain to document their business justification when making those requests of any witness.

As always, visit the Employment Essentials blog frequently or follow us on Twitter for up-to-the-minute developments on these issues as they happen.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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