Most employers require witnesses and other participants in investigations into employee misconduct to maintain confidentiality, particularly for investigations involving allegations of harassment or discrimination. According to a recent decision by the National Labor Relations Board (NLRB), such confidentiality mandates may run afoul of the National Labor Relations Act (the Act). Notably, the Act applies to most private sector employers, regardless of whether they currently have a unionized workforce.
Recently, the NLRB in Banner Health Systems d/b/a Banner Estrella Medical Center and James A. Navarro, 358 NLRB No. 93 (July 30, 2012), decided that an employer could not have a general policy prohibiting employees from discussing ongoing employment investigations or other employment information without violating Section 7 of the Act (which deals with “protected concerted activity” by employees). Mr. Navarro was a hospital technician who refused his supervisor’s instructions regarding sterilizing equipment and, as a result, was subjected to disciplinary “coaching.” During an investigation of the incident, the hospital’s human relations consultant told Mr. Navarro not to discuss the matter with co-workers. The hospital also had established written confidentiality and interview procedures prohibiting employees from discussing investigations or private employee information (such as salary information). The NLRB ruled that these general confidentiality policies violated the Act. It explained that an employer’s “generalized concern with protecting the integrity of its investigation” was insufficient to override the employees’ protected right to discuss the terms and conditions of their employment.
While this decision ultimately may be modified or reversed on appeal, for now it is causing uncertainty for many employers who have well-developed confidentiality policies relating to all employee investigations. The NLRB did provide some examples of situations that could require employee confidentiality during an on-going investigation, such as protection of a witness, the need to protect evidence from destruction, or the prevention of fabricated testimony or a cover-up. However, it is clear that the need for confidentiality will have to be evaluated (and, if necessary, defended) on a case-by-case basis.
The following tips are offered to assist employers in reviewing their current policies and practices in light of this recent development.
The primary takeaway from the NRLB’s recent decision is that businesses should give more thought to confidentiality requirements, as opposed to adopting a one-size-fits-all, blanket approach. Although Navarro ultimately may be seen as an outlier decision rather than the start of a new trend, businesses should consider reviewing their current policies and procedures to determine whether a more tailored approach to confidentiality is appropriate for particular matters.
Ellen Rosen Rogoff is a Partner in the Philadelphia, PA office of Stradley Ronon Stevens & Young, LLP. She practices in the areas of employment law and complex commercial litigation.