NLRB Clarifies Rules on Confidentiality Instructions During Disciplinary Investigations

November 2012

Two recent National Labor Relations Board (NLRB) decisions Hyundai America Shipping Agency, Inc., 357 N.L.R.B. No. 80 (2011) and Banner Health System, 358 N.L.R.B. No. 93 (2012) have altered the balance between an employer’s understandable interest in confidential internal disciplinary investigations and an employee’s right to discuss internal investigations with coworkers as provided by Section 7 of the National Labor Relations Act (NLRA). These cases reflect a shift from previous NLRB decisions that recognized the value of confidentiality pending employer investigations. The earlier decisions allowed employers to instruct employees not to discuss ongoing investigations where there was a business justification to maintain confidentiality of the investigative process. The more recent cases make clear that an employer’s “generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights.” Banner Health System, 358 N.L.R.B., at * 7. Instead, employers who seek to lawfully instruct employees not to speak about an ongoing disciplinary investigation must first determine whether “witnesses need[ ] protection, evidence [is] in danger of being destroyed, testimony [is] in danger of being fabricated, or there [is] a need to a prevent a cover up.” Id. at *8.

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