NLRB Prohibits Employer from Disciplining Employees for Discussing Workplace Investigation

Eric Paltell
Eric Paltell
08/01/2012

Many employers tell employees who participate in investigations into workplace misconduct that they cannot discuss the investigation with co-workers while the investigation is ongoing. The rationale behind such rules is that it protects the integrity of the investigation and prevents witness collusion. Unfortunately, a recent decision from the National Labor Relations Board (“NLRB”) held that such a rule violates the National Labor Relations Act (“NLRA”) because it interferes with employees’ rights to discuss terms and conditions of employment. Banner Health Systems, 358 NLRB No. 93 (July 30, 2012).

In Banner Health Systems, a Phoenix-area hospital was conducting an investigation into an employee complaint that the hospital used inappropriate methods to sterilize medical instruments during a steam outage. During the investigation, a human resources representative told an employee being interviewed that he should not discuss the investigation with co-workers while the investigation was under way. The employee filed an unfair labor practice charge with the NLRB.

Although the Administrative Law Judge (“ALJ”) ruled that the hospital policy was legal, a divided NLRB reversed the ALJ and found a violation of Section 8(a)(1) of the NLRA. The Board majority found that a “blanket approach” of asking employees not to discuss investigations with colleagues was an illegal restraint upon the ability of employees to engage in concerted activity for their mutual aid or protection – a right guaranteed by Section 7 of the NLRA.

The Banner Health Systems decision is a troubling one. Assuming the NLRB continues to take this stance (which likely depends on who wins the Presidential election), employers conducting workplace investigations may have to “pick their poison” – either don’t ask for confidentiality and risk witness collusion, or ask for confidentially and risk an unfair labor practice charge. It may be that the best course of action for employers for now is to stay away from “blanket” confidentiality requirements, and to handle such requests on a case-by-case basis.

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