Internal investigations of employee complaints can be disruptive to the workplace. Employers commonly try to minimize that disruption by instructing employees to keep the investigation confidential.

A recent decision by the National Labor Relations Board (NLRB) rejected an employer's standard practice of seeking confidentiality in its workplace investigations. Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438 (July 30, 2012). The 2-1 decision held that Banner Health violated the National Labor Relations Act (NLRA) when it asked the complaining employee to refrain from discussing the matter with co-workers while the investigation was ongoing.

Section 7 of the NLRA gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems. Employees have a right to engage in protected concerted activity even where they are not unionized.

In the Banner Health decision, the NLRB suggested that while a blanket policy of confidentiality is not appropriate, some circumstances may merit a restriction of employees' Section 7 rights. The employer must, however, show that it has "a legitimate business justification" that outweighs employees' rights to engage in concerted activity.

An "individualized assessment" of the circumstances will be required in order to show the employer's legitimate business justification for requiring confidentiality. The NLRB listed a few considerations that may trump Section 7 rights, including whether:

• Witnesses need protection;
• Evidence is in danger of destruction;
• Testimony is in danger of being fabricated; or
• A cover-up needs to be prevented.

In light of the Banner Health decision, employers must carefully evaluate the circumstances before instructing employees not to discuss workplace investigations. Standard confidentiality directions applied in each investigation may subject employers to liability under the NLRA.

If you have questions about the impact of the Banner Health decision on your organization, please contact the Foster Pepper Employment and Labor Relations group.