As a result of a recent ruling by the National Labor Relations Board (NLRB)^[1], non-union employers who have a practice or policy that prohibits employees from discussing ongoing internal investigations of workplace misconduct could be violating the National Labor Relations Act (NLRA).

James Navarro was employed as a sterile technician at Banner Estrella Medical Center (the “Hospital”) in Phoenix, Arizona.  Sterile processing technicians are responsible for the proper care and handling of all surgical instruments.  One day, Navarro found there was a broken steampipe and, consequently, a lack of hot water and steam pressure needed to sterilize surgical instruments used in certain surgeries.  Navarro apprised the necessary facility personnel and was ordered to use another machine – a low-temperature sterilizer – to clean the instruments and hot water from the coffee machine in the break room.  Navarro responded that he did not believe either of these procedures met established standards and that he did not want to endanger patients.  As a result, he did not clean or sterilize his instruments that day.  Management contended that Navarro had refused to follow instructions and been insubordinate.  Navarro eventual received a non-disciplinary coaching, and was asked not to discuss the matter with his coworkers while the issue was being investigated.

During and before this investigation, HR routinely asked Hospital employees making a complaint not to discuss the matter with their coworkers during the Hospital’s ongoing investigations.  In addition, each Hospital employee hired was required to sign a confidentiality agreement stating, among other things, that they were barred from discussing other employees’ salaries and disciplinary actions unless such information was originally disclosed by the original employee.

In its decision, the NLRB stated that, “to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.”  Central to Section 7 of the NLRA, is the protected right of an employee to communicate to coworkers about wages, hours, and other terms and conditions of employment.  Although the Hospital contended that its practice of instructing its employees not to discuss ongoing internal investigation matters with coworkers was necessary to protect the integrity of investigations, the NLRB found that such a policy violated the NLRA.

The NLRB has not prohibited employers from requesting that employees keep information about internal investigations confidential in every situation.  Instead, the NLRB held that an employer must first be able to show, on a case-by-case basis, that it has a genuine business justification for confidentiality which outweighs the employee’s Section 7 right to communicate with co-workers.

The NLRB’s decision complicates employers’ ability to protect an investigation’s integrity by keeping them confidential.  The NLRB has shifted the burden to the employer to determine (i) if any witnesses need protection, (ii) if evidence was in danger of being destroyed, and (iii) if there was a need to prevent a cover up.  If these issues or other specific reasons for confidentiality exist, an employer can require confidentiality of these legitimate business needs during an investigation.  If a legitimate business justification has been identified, to best protect themselves, employers should (i) document its reasons for the confidentiality necessity in a memo or written explanation to the investigation file, and (ii) provide a witness with a written explanation of why confidentiality is necessary for that particular investigation.  Employers should also review their policies and employment agreements to ensure they are free of any broad confidentiality policies.  These additional actions as part of an investigation will help employer not run afoul of the NLRB’s ruling.