[authors: Shannon D. Farmer, Mary Cate Gordon]

The National Labor Relations Board this week found that a hospital violated the National Labor Relations Act when it maintained and applied a rule prohibiting employees from discussing ongoing investigations of employee misconduct.

The employer’s human resources consultant routinely asked employees who made complaints not to discuss the complaint with their coworkers while the employer conducted an investigation. The employer argued, and the Administrative Law Judge agreed, that this prohibition was justified, as it protected the integrity of the employer’s investigations. The NLRB disagreed, and in a 2-1 decision found that this kind of blanket approach failed to sufficiently minimize the impact on an employee’s right to engage in protected, concerted activity under the act.

Specifically, the NLRB held that it was the employer’s burden before requiring confidentiality to first assess the situation and determine if confidentiality was required. The Board stated that issues such as witness protection, evidence destruction, fabrication of testimony, or danger of a cover-up would be legitimate reasons for an employer to require confidentiality to maintain the integrity of its investigation. The Board concluded, however, that a blanket mandate of confidentiality in all investigations improperly encroached on employees’ rights under the NLRA and thus the employer’s practice violated the act.

The Board otherwise agreed with the Administrative Law Judge’s decision in the case.

Board member Brian Hayes dissented from the Board’s conclusion on the confidentiality issue. He argued that the employer’s request for confidentiality during investigations was a suggestion, not a binding policy, and therefore was not unlawful.

Employers should be aware that the Board’s view that it violates the act to require confidentiality in all investigations applies equally to unionized and non-union workplaces. Therefore, employers seeking to employ the common practice of requiring confidentiality during investigations of harassment or misconduct should review their policies and practices to ensure that they invoke confidentiality based on the nature of the complaint and subsequent investigation. Otherwise, they risk having their need for confidentiality second-guessed by the Board.