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Mere Request that Employee Not Discuss Employer's Ongoing Investigation Violates Labor Law, NLRB Holds

By Philip B. Rosen, Richard I. Greenberg, Christopher M. Valentino and Jeffrey W. Toppel
  • August 4, 2012

The National Labor Relations Board (“NLRB”) has ruled that an Arizona hospital violated the National Labor Relations Act (“NLRA”) just by its human resources consultant asking employees interviewed in connection with an internal investigation not discuss the matter with their co-workers while the investigation was ongoing.  Banner Health System d/b/a Banner Estrella Med. Ctr., 358 NLRB 93 (July 30, 2012).  The Board’s ruling clarifies that an employer’s mere suggestion (as opposed to a mandate) to employees that they not speak to others regarding an internal investigation could interfere with, restrain or coerce employees in the exercise of their Section 7 statutory rights, and thereby violate Section 8(a)(1) of the NLRA.  Section 7 protects the rights of both union and non-union employees to engage in “concerted activities” for their mutual aid and protection, and includes discussions among employees concerning their terms and conditions of employment. This is the latest in a growing number of decisions from the Board expanding the scope of Section 7’s protections for employees in both union and non-union workplaces.

Board’s Decision

A 2-1 Board majority reversed an Administrative Law Judge’s finding that the employer’s maintenance and application of an oral rule prohibiting employees from discussing internal complaints that were under investigation by the hospital did not violate Section 8(a)(1) of the Act.  The Board rejected the employer’s argument that the confidentiality rule was justified by its concerns with protecting the “integrity of the investigation.”  It found that the employer’s “generalized concern” regarding the need to protect the integrity of its investigation was insufficient to outweigh employees’ Section 7 rights.  The Board called for a more exacting approach: 

Rather, in order to minimize the impact on Section 7 rights, it was the [employer’s] burden “to first determine whether in any give[n] investigation witnesses need[ed] 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.”

The Board then determined that, in applying a “blanket approach” to maintaining confidentiality with respect to an internal investigation, the employer did not meet the requirement of evaluating whether an actual threat to the integrity of the investigation existed to justify the need for such confidentiality. 

The majority specifically rejected the dissent’s argument that the employer’s prohibition served as a “mere suggestion” to employees not to discuss the internal investigation.  According to the majority, viewed in context, the employer’s request “had a reasonable tendency to coerce employees.”  (The statement was made by a human resources consultant engaged by the medical center to conduct the investigation.)  The Board also reiterated that a rule need not contain a direct or specific threat of discipline to be found a violation of the Act.  In reaching its decision, the Board did not analyze guidance from other agencies, such as the Equal Employment Opportunity Commission, that suggest that those involved in investigations should maintain confidentiality to protect the privacy of those involved.

Board’s Section 7 Initiative

In light of this ruling, supervisors and investigators need to assess the precise need for secrecy and restrictions on employee discussion before demanding, requesting, encouraging or even suggesting that employees keep information confidential during the course of an investigation. Banner Estrella, however, also may be seen in a broader context.  It is illustrative of the Agency’s current disposition to interpret broadly the scope of Section 7’s protections for employees.  The Board’s recent focus on employer workplace policies, including, especially, social media policies, likewise evinces this Board’s purpose to allow employees ever more latitude under the rubric of protected concerted activity, while restricting employers’ ability to manage their workforces and protect their businesses.  Banner Estrella also reminds employers that unlawful conduct can arise not only from written workplace policies, but also from seemingly reasonable statements made by supervisors and human resource representatives that may be construed as interfering with an employee’s rights.

The Board has sought to educate the public about this initiative.  In June, it launched a new webpage focused entirely on protected concerted activity.  It provides examples of recent cases in which employers have been found to have improperly disciplined employees in response to such activities, along with the remedies that the Board obtained for the employees in the cases.  In announcing the launch of the new webpage, NLRB Chairman Mark Gaston Pearce stated:

We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act .… Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.

As a result of the Board’s public outreach initiative, employers can expect to see an increase in the number of unfair labor charges filed by both unionized and non-union employees alleging interference with their Section 7 rights.

Employers should consider reviewing their personnel policies with labor counsel to ensure that the policies are compliant with changing interpretations of the NLRA.  A per se prohibition on employee discussions of investigations, regardless of circumstance, must be excised. Investigators must be trained on this issue and advised that any statements even requesting confidentiality should be made only after a detailed analysis of the scope of the investigation.  If you have any questions concerning the Board’s decision or the initiative described above, please contact the Jackson Lewis attorney with whom you work.

©2012 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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