Employers concerned with maintaining the integrity of their internal HR investigations have traditionally done so by instructing or asking employees to refrain from discussing the investigation. But how does this common practice fare in light of the National Labor Relations Board's ("NLRB") recent decision in Banner Health Systems d/b/a Banner Estrella Medical Center and James A. Navarro (Case 28-CA-023438,July 30, 2012)? In part, the answer depends on whether or not the employer's investigative policies and procedures are sufficiently advanced and up-to-date. If so, for reasons described below, compliance with Banner Health Systems may not be as difficult as many management-side pundits are predicting.

In Banner Health Systems, the NLRB determined that it was a violation of the National Labor Relations Act ("Act") for an employer to instruct or request participants in an internal investigation not to discuss the investigation with other employees, based solely on its concern for the integrity of the investigation. As a result, according to the NLRB, such instructions or requests by an employer violate the Act if the employer cannot first establish that at least one of four acceptable grounds exists. An employer can only instruct or request an employee not to discuss the investigation with coworkers if it finds that: (1) a witness needs protection; (2) evidence is in danger of being destroyed; (3) testimony is in danger of being fabricated; or (4) there is a need to prevent a cover-up. Employers can only comply with Banner Health Systems, if, at the outset of every investigation, they identify the crucial fact or reason that, in addition to "preserving integrity," justifies restricting the employee's right to engage in speech with coworkers about the terms or conditions of their employment – which is traditionally considered concerted activity protected by Section 7 of the Act.