In July, 2012, the National Labor Relations Board (NLRB) announced a new rule prohibiting employer policies mandating confidentiality throughout work place employee investigations. A Section 7 employee right to discuss investigation matters was recognized as statutorily protected and concerted activity. An employer’s blanket policy prohibiting discussion of investigation matters was found to unlawfully chill employee protected and concerted activities in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93.

This new confidential investigation rule was discussed in a client alert we issued on September 18, 2012. Apparently, concerned about the controversy Banner Health generated and in an effort to clarify its holding, the General Counsel of the NLRB released an Advice Memorandum to the public on April 16, 2013 which discusses when confidential investigation policies might be lawful.

Banner Health was interpreted as requiring a case-by-case determination of the business reasons for confidentiality. Certain policy-identified legitimate business interests favoring confidentiality were noted in the Advice Memorandum: “The desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.” The Advice Memorandum recognized that these interests “in some circumstances” could support a confidentiality expectation and disciplinary action “up to and including immediate termination” for employees who violated the confidentiality expectation.  As the Advice Memorandum stated,

“Rather [than a blanket policy], an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up. Thus, a blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation.”

The Advice Memorandum does not describe the circumstances when these legitimate interests would be a reasonable basis for a confidentiality expectation. It is entirely unclear when the Board would find mandated confidentiality to be lawful. While the effort to clarify provides no meaningful guidance for employers about how to proceed, the General Counsel has indicated that the Banner Health holding is not absolute and that while blanket rules may be problematic, specific circumstances may justify an employer expectation of investigation confidentiality.