[author: Ronald Meisburg]

Employers routinely conduct investigations of workplace misconduct or other incidents. When doing so, many will direct employee witnesses or complainants not to discuss the investigation with other employees. There are a number of legitimate reasons for this, all aimed at protecting the integrity of the investigation and facilitating the search for the truth. A recent decision of the National Labor Relations Board, extending prior Board precedent, threatens to compromise this goal. 

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the employer’s human resources consultant routinely asked employees making a complaint not to discuss the matter with their coworkers while the employer’s investigation was ongoing.  It was a part of the employer’s standard written “introduction for all interviews.” The administrative law judge who heard the case upheld this practice, finding that it was justified by the employer’s concern for protecting the integrity of its investigations.

On appeal, however, the Board reversed the judge’s decision. The Board stated:  

Contrary to the judge, we find that the [employer’s] generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights [to engage in concerted activity for mutual aid and protection].

Slip opinion at 2 (emphasis and bracketed material added).

The Board went on to hold that, in order to minimize the impact on Section 7 rights, 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 prevent a cover up. Id.

The Board concluded that the employer’s “blanket approach” of “maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct” violated Section 8(a)(1) (prohibiting employers from interfering, restraining or coercing employees in the exercise of their Section 7 rights). Id.

The Board’s decision leaves at least one very difficult question unanswered, which is: Exactly how does an employer undertake to determine, and then make known to the employee witnesses, prior to their ever being interviewed, whether it should or should not have the concerns necessitating the rule prohibiting discussion with other employees? The Board does not answer this question. So it is dumped into the laps of employers and their counsel, who must now try and figure it out. 

We do not question the legitimacy of the Board’s solicitude for employee rights under Section 7, or the NLRB’s vigorous enforcement of them. But here the Board has shown a lack of appreciation for the necessity of effective employer investigations to achieve the prevention or remediation of discrimination, retaliation, theft, violence or other civil or criminal violations in the workplace. The agency has imposed a requirement without due regard for either how it can be complied with, or its adverse impact on other legitimate workplace interests and compliance with other laws. Such decisions undermine regard for both the agency and the law it is supposed to enforce with a greater sense of balance than was displayed in this case.