NLRB Clarifies Rules on Confidentiality Instructions During Disciplinary Investigations

Two recent National Labor Relations Board (NLRB) decisions Hyundai America Shipping Agency, Inc., 357 N.L.R.B. No. 80 (2011) and Banner Health System, 358 N.L.R.B. No. 93 (2012) have altered the balance between an employer’s understandable interest in confidential internal disciplinary investigations and an employee’s right to discuss internal investigations with coworkers as provided by Section 7 of the National Labor Relations Act (NLRA). These cases reflect a shift from previous NLRB decisions that recognized the value of confidentiality pending employer investigations. The earlier decisions allowed employers to instruct employees not to discuss ongoing investigations where there was a business justification to maintain confidentiality of the investigative process. The more recent cases make clear that an employer’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights.” Banner Health System, 358 N.L.R.B., at * 7. Instead, employers who seek to lawfully instruct employees not to speak about an ongoing disciplinary investigation must first determine whether “witnesses need[ ] protection, evidence [is] in danger of being destroyed, testimony [is] in danger of being fabricated, or there [is] a need to a prevent a cover up.” Id. at *8.

Employee Rights under Section 7 -

Section 7 of the NLRA provides employees—whether unionized or not—with the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively” and to engage in other activities. 29 U.S.C § 157. The NLRB has interpreted this to include a right to “discuss discipline or disciplinary investigations involving fellow employees.” Caesar’s Palace, 336 NLRB 271, 272 (2001). However, where employers have a “legitimate and substantial business justification” for requiring confidentiality, employers can prohibit employees from discussing an ongoing investigation. Id. Only where an employee’s interest in discussing an investigation outweighs the employer’s asserted justification for confidentiality will an instruction to keep the details of an investigation confidential be a violation of Section 7. Id. The NLRB has found that a “legitimate and substantial business justification” existed where confidentiality was required to “ensure that witnesses were not put in danger, that evidence was not destroyed, and testimony was not fabricated.” Id. Under Section 8 of the NLRA, it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” 29 U.S.C. § 158.

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