September 2012 Bar Bulletin
NLRB Bars Blanket Requests for Confidentiality
By Laura L. Edwards and Jennifer A. Parda
Mark Twain reportedly said that "a lie can run around the world six times while the truth is still trying to put on its pants." If Twain had ever conducted a workplace investigation, he might have more accurately remarked that the truth is actually still in bed wearing pajamas.
By their very nature, workplace investigations concern matters that get people talking. Their subjects include all of the great plot lines of classic literature: romance, betrayal, deceit, misuse of company technology. It's no mystery, therefore, that tales of the office's dark underbelly spread quickly.
Because of this, sensible employers commonly ask those involved in a workplace investigation to not discuss the matter with others. The reasoning is simple: The principal purpose of conducting an investigation is to deduce what probably happened by collecting various employee recollections.
Discussions amongst employees alter recollections, affecting the integrity of the investigation. Such discussions may also intimidate or discourage employees from cooperating with the investigation. In other words, without confidentiality, the truth may never get out of bed.
Banner Health System
In Banner Health System d/b/a Banner Estrella Medical Center,1 the National Labor Relations Board expressed its disagreement with employers' long-standing practice of requesting confidentiality. The facts of the case are simple: An employee accused of insubordination met with Banner Health System's human resources representative to tell his side of the story.
Banner provided its representative with a standard interview form containing an "Introduction for All Interviews," which noted that the investigator should tell employees to not discuss ongoing investigations. The form was never provided to employees. However, as a matter of course, the human resources representative asked the employee to not discuss the investigation with others until she concluded the investigation. She did not threaten disciplinary action if the employee chose to do otherwise.
In a 2-1 decision, the Board found that the confidentiality request "had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights" under the National Labor Relations Act (NLRA). Section 7 grants employees - in both union and non-union workplaces - the right to engage in concerted activity, including discussing issues related to their wages, hours and working conditions.
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