NLRB Ruling Would Penalize Employers for Instructing Employees to Keep Investigations Confidential

Following a recent ruling by the National Labor Relations Board (“NLRB”), an
employer’s ability to instruct employees not to discuss with co-workers matters under
investigation may result in a violation of the National Labor Relations Act (“NLRA”), which
applies to both unionized and non-unionized employers. On July 30, the NLRB issued its
decision in Banner Health System d/b/a Banner Estrella Medical Center and James Navarro.
The split decision (2-1) found that an employer’s directive to an employee that he should not
discuss a matter that was under investigation with his co-workers was a violation of the
employee’s rights under Section 7 of the NLRA. Section 7 includes the right to communicate
with co-workers about the terms and conditions of employment. This decision has caused
employers to wonder whether they should change the common practice of asking witnesses to
keep the investigation private and not discuss it with their co-workers.

Here are our thoughts on the matter. First of all, the Banner decision is distinguishable
on its facts from other circumstances in which the Board might not consider the request to be an infringement on the employee’s Section 7 rights. The employee in Banner, Mr. Navarro, made an internal complaint about the way he had been instructed to perform his job duties when his equipment was not operating correctly. Mr. Navarro refused to follow his supervisor’s instructions because of safety concerns and was then disciplined for insubordination. In his interview with human resources, he was instructed not to discuss the matter with co-workers while the company’s investigation was still open, and the company’s interview form referenced that instruction. Even though Mr. Navarro did not receive a copy of the interview form, the NLRB determined that since the employer maintained a “blanket” rule of providing confidentiality directives in connection with internal complaint interviews, its policy interfered with employees’ rights to engage in protected concerted activity under Section 7. The Board found that the employer had only a “generalized concern with protecting the integrity of its investigation” and that “general concern” was not enough to outweigh the employees’ Section 7 rights to engage in concerted activity.

The dissent characterized the company’s confidentiality instruction as a “suggestion,”
and not a “prohibited rule or policy,” because it was a request and not an order, and failure to
keep the information confidential would not have resulted in discipline. The majority decision, however, stated that, regardless of whether or not the request for confidentiality took the form of an official rule or policy, an employer may prohibit employee discussion about an ongoing investigation only if it has a specific legitimate business justification for the need for confidentiality, and the validity of the legitimate business reason must be determined on a caseby-case basis. Absent such a justification, such an instruction, even in the form of a suggestion, would be impermissible. The Board offered a few examples of the type of concerns that might justify a request for confidentiality, including concerns about protecting witnesses, destruction of evidence, fabrication of testimony, or preventing a cover-up. Since the employer’s “blanket approach” in its investigations did not consider this type of justification, it was a violation of Section 8(a)(1) of the NLRA.

As an aside, the NLRB confirmed that the employer’s policy that prohibited employees
from discussing other employees’ private information, such as wages and discipline, was also
unlawful. This should come as no surprise to employers, who have long been cautioned against such policies.

Although it is probably prudent to review “blanket” confidentiality directives, there are
some other issues to consider. As has been the case with other decisions by the NLRB, this
decision might be overruled. Moreover, depending upon the results of the November election, there might be an entirely new NLRB on the horizon, with a completely different, more employer-friendly agenda. Nonetheless, if an employer believes that some of the risks outlined above may be present, and therefore the employer wants to ask the witnesses in an investigation to keep information confidential, the employer should definitely perform a careful, specific analysis at the beginning of the interview process, document the reasons for its need for confidentiality, and document the precise instructions given to witnesses on that subject. Pending further review of this decision — or reversal by a new NLRB — confidentiality directives should be provided to witnesses only as necessary and on an individualized basis.

An even more aggressive position on this topic has recently surfaced from the Equal
Employment Opportunity Commission (“EEOC”). Perhaps emboldened by the NLRB’s
decision, the EEOC has, in at least one case, informed an employer that telling an employee not to discuss her complaint with her co-workers is a flagrant violation of her Title VII rights. EEOC guidance states that complaining to anyone, including high levels of management, union officials, other employees, newspapers, etc., about discrimination is protected opposition. Accordingly, the EEOC informed the employer in this case that discussing a complaint of sexual harassment with others is protected opposition, and an employer who tries to stop an employee from talking with others about alleged discrimination has violated Title VII rights. Moreover, the instruction to not tell others about the alleged harassment is enough to constitute a harm under Title VII; according to that EEOC office, there does not have to be a separate adverse action. Although, to our knowledge, this has surfaced in only one case, it does present another danger zone for employers.

If you have any questions about this E-Mail Alert, please contact any of the attorneys at
Skoler, Abbott & Presser, P.C.