Employers routinely conduct investigations of workplace misconduct and other incidents. As part of such investigations, it is common for investigators to instruct employees, including the complainant and other witnesses, not to discuss the investigation with other employees. Generally, such confidentiality instructions are aimed at protecting the integrity of investigations and facilitating the search for truth. However, an important federal appeals court decision will be issued in the coming months that is expected to clarify whether employers must cease making that routine instruction and make additional adjustments to their internal investigation policies and procedures.

In 2012, the National Labor Relations Board heard Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012) [mynlrb.nlrb.gov/link/document.aspx/09031d4580b64b98], a case involving a challenge to the employer's investigation policies. In that case, the employer's HR consultant routinely asked employees making a complaint not to discuss the matter with their coworkers while the employer's investigation was ongoing. While the NLRB administrative law judge who heard the case upheld the employer's practice, the Board reversed the decision. The NLRB found that the employer's "generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights [to engage in concerted activity for mutual aid and protection]." According to the NLRB, the employer's "blanket approach" of maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct" violated the National Labor Relations Act's prohibition on employers interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. In order to minimize the impact on those rights, the NLRB held that an employer must first determine, in each particular investigation and for each particular witness, whether there is a legitimate business reason to ask for confidentiality that outweighs the interviewee's Section 7 rights. A legitimate reason might exist, according to the NLRB, if (1) a witness needs protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover up.

Following the NLRB's Banner Health decision, employers have expressed a number of concerns about the decision's implications, including whether the lack of a confidentiality instruction undermines employers' ability to comply with various other laws and legitimate workplace interests. For example, an employer's policy of requiring confidentiality for discrimination and harassment complaints and investigations encourages employees to raise concerns, guards against retaliation, ensures the integrity of investigations, promotes candor of witnesses, and aids the employer in maintaining attorney-client and other privileges.

The Banner Health decision is on appeal to the U.S. Court of Appeals for the District of Columbia Circuit and an opinion is likely to be issued by early summer. In the meantime, employers should, at a minimum: (a) evaluate their applicable internal policies, procedures, and guidelines to ensure that no "blanket" confidentiality requirement exists that prohibits employees from discussing with each other ongoing investigations; and (b) in any instances in which a confidentiality instruction is given to a particular complainant/witness, ensure that at least one of the four above business reasons exist for the instructions, document the applicable reason(s), and explain the reason(s) to those receiving the confidentiality instruction. (Note: Investigators still are free to advise "supervisors" (as defined by the National Labor Relations Act) to treat the investigation and matter being investigated as confidential, as the applicable provisions of the Act do not apply to them.) Employers should consult with their labor and employment counsel to discuss specific steps that they can take to address the concerns raised by the NLRB in Banner Health and should stay tuned for the U.S. Court of Appeals' upcoming ruling.