On July 30, the National Labor Relations Board (“NLRB”) issued a 2-1 decision in the case of Banner Health System, stating that Banner Health System violated Section 7 of the National Labor Relations Act (“NLRA.”) The NLRB concluded that Banner Health System’s requirement of confidentiality in all internal investigations infringed on employees’ right to discuss their working conditions. Although the NLRB’s ruling does not impose an across-the-board ban on confidentiality during internal investigations, the decision makes clear that the NLRB now places the burden on employers to justify whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up. If an employer cannot demonstrate that one or more of these factors exist, then a request for confidentiality during an internal investigation could be deemed an unfair labor practice by the NLRB.
A significant number of companies have the same policy as Banner Health System. The problem with this ruling is that employers almost never have advance warning of such conduct. When these issues do arise, it is frequently too late to undo the damage. As a result, requiring that an employer have a justification before requesting that investigation participants maintain confidentiality will certainly hamper the effectiveness of internal investigations. Placing that burden on employers seems particularly unreasonable given the significant liability employers face for retaliation under Title VII and other anti-discrimination statutes.
This ruling is just one of a number of head-scratching NLRB opinions and proposed rules. Given the concerns between the NLRB’s ruling and employers’ potential retaliation liability, employers will have to think long and hard about how strictly to follow this ruling. All things considered, employers would be wise to review their internal investigation policies and procedures to minimize reliance on any broad confidentiality mandates.