NLRB Holds That Asking Employees Not to Discuss Ongoing Investigations with Co-Workers Violates the NLRA

August 6, 2012

By: Kerry W. Langan

On July 30, 2012, the National Labor Relations Board (“Board”), in a 2 to 1 decision, held that a hospital violated Section 8(a)(1) of the National Labor Relations Act ("NLRA") by asking employees who make a complaint not to discuss the matter with co-workers while the investigation is pending.  Section 8(a)(1) of the NLRA forbids employers from interfering with the exercise of an employee's Section 7 rights, such as the right to organize, form, join, or assist a labor union, to bargain collectively, or to engage in other concerted activities for mutual aid or protection.

In Banner Health System, the hospital’s human resources consultant routinely asked employees who made a complaint not to discuss the matter with co-workers while the investigation was ongoing.  It is common for employers to make this type of request to ensure confidentiality and to protect the integrity of their investigation.  What is troubling about this case is that the Board found that an employer’s legitimate interest in protecting the integrity of its investigation is generally insufficient to outweigh an employee’s Section 7 right to discuss workplace concerns with co-workers.  The Board held that before an employer prohibits an employee from discussing an ongoing investigation, the employer must make an individualized assessment and be able to demonstrate that it has a legitimate business reason that outweighs the particular employee’s Section 7 rights.  In undertaking this analysis, the employer must consider whether:  (1) there are witnesses in need of protection; (2) evidence is in danger of being destroyed; (3) testimony is in danger of being fabricated; or (4) there is a need to prevent a cover-up.  An employer’s blanket rule prohibiting employees from discussing ongoing investigations without considering these factors would not meet this requirement.

In light of this recent decision by the Board, employers should be cautious about their communications to employees during the course of a workplace investigation.  In particular, it would be prudent for employers to make an individualized assessment in each case before deciding whether to ask an employee not discuss a matter with co-workers.  In undertaking this analysis, it would be wise to consider the four factors identified by the Board.  If, after considering these factors or any other compelling factors, an employer ultimately decides to ask an employee not to discuss matters under investigation, the employer should document its rationale for making the decision in the event that the decision is later challenged.  In addition, rather than “prohibiting” or “requiring” an employee to maintain confidentiality, it may be wise to express that it is the employer’s “preference” that an employee not discuss the matter with co-workers while the investigation is pending.