Employers who issue broad and routine instructions prohibiting employees from discussing internal investigations need to demonstrate that confidentiality is necessary to further a legitimate business interest, otherwise, the employer could be found to be in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”). Banner Health System routinely instructed employees involved in internal investigations to remain silent about the investigation. The NLRB, in a 2-1 decision, found that the statement “viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint on Section 7 rights.” The Board rejected a blanket concern for the integrity of the investigation and instead held that the employer had the burden “to first determine whether in any given investigation witnesses needed 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.” NLRB member Hayes dissented on the basis that the instruction given was merely a suggestion rather than a rule prohibiting discussion.
See Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012).
(Development authored by Carter Meader)