*By George S. Crisci
The National Labor Relations Board is at it again!
We have reported in the past on recent efforts by the NLRB and its Acting General Counsel to invalidate long-standing, well-established, and eminently reasonable employment policies, some of which have existed for decades (or longer), because these policies allegedly interfered with employee rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity. For instance, the Acting General Counsel issued a complaint against an employer because the employer’s handbook contained a traditional “at-will employment” acknowledgement that is found in countless employment policy handbooks throughout the country.
Now the full Board itself has gotten into the act, and is targeting a practice that most employers consider essential in complying with their obligations under many other employment laws – laws that the NLRB lacks any jurisdiction to enforce and regulate. We are speaking of the practice of ensuring that investigations are kept confidential.
In Banner Health System d/b/a Banner Estrella Medical Center, the NLRB held that an employer’s direction to employees to keep an investigation confidential (i.e., not discuss it with others) violates Section 7 of the National Labor Relations Act.
Interestingly, the NLRB rejected the recommendation of the Administrative Law Judge, who found that maintaining confidentiality “is for the purpose of protecting the integrity of the investigation,” explaining that, “It is analogous to the [witness] sequestration rule,” and meant to ensure that “employees give their own version of the facts and not what they heard [somewhere else].” The NLRB didn’t see it that way, holding instead that to "justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.”
The NLRB apparently does not believe that compliance with several other employment laws that obligate employers to conduct effective internal investigations of employee complaints was legitimate enough to trump whatever Section 7 rights might be attendant to breaching confidentiality. Instead, the NLRB reduced the importance of complying with these other laws to a mere "generalized concern with protecting the integrity of ... investigations" and as such "insufficient to outweigh employees’ Section 7 rights." According to the NLRB, an employer must “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to protect a cover up." Of course, the NLRB offered no explanation or guidance as to how an employer is supposed to make that determination.
Whether any Court will enforce this order remains to be seen.
But, if enforced, this ruling will be both severe and debilitating. Every well-written employment policy concerning investigations of employee complaints mandates confidentiality to the extent practicable. The investigation component of a standard workplace harassment policy immediately comes to mind. Harassment investigations must be kept confidential in order to encourage employees to report violations, as well as to ensure that witnesses provide honest and helpful information based only upon their own first-hand knowledge (as opposed to "information" received by gossip). All investigators know that confidentiality during the investigation process is essential to maintaining the integrity of any proper investigation. The NLRB’s ruling will directly interfere with employers' efforts to comply with these other employment laws, and will almost certainly discourage employees from coming forward with valid complaints about workplace issues--since there would no longer be any means for the employer to assure truthfully that confidentiality will be maintained to the extent practicable.
We will continue to monitor this decision, including whether the employer will challenge the ruling in the federal court of appeals, and stand ready to assist any employer who may have need to conduct a confidential investigation.
*George S. Crisci, an OSBA Certified Specialist in Labor and Employment Law, represents public and private employers in all aspects of workplace law. For more information about NLRB rulings or labor & employment law, please contact George (gsc@zrlaw.com) at 216.696.4441.
