Are Workplace Investigations Still Confidential? Maybe Not According to the NLRB

The National Labor Relations Board (the “Board”) recently issued a decision concerning employee interviews that has garnered much attention.  In Banner Health System, the Board found that an agent of the employer violated the Act by advising an employee witness to refrain from discussing the matter with coworkers while the investigation was ongoing.  The Board opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation only when it has a legitimate business reason that outweighs the employee’s rights under Section 7.  The Board rejected Banner Health’s argument that its rule served to protect the integrity of the investigation, stating that an employer must first determine whether evidence of concern exists – e.g., that witnesses need protection, evidence is in danger of spoliation, or there is potential for a cover-up.

Takeaways:  Employers should remember that the rule established by the Board in Banner Health will apply to them even if their employees are not represented by a labor union.  Unfortunately, at this early date, it is not clear what kind of evidentiary showing would be sufficient to convince the Board that a confidentiality instruction is warranted, but one must wonder if it will be possible for a concerned employer to put the genie back in the bottle after conduct sufficient to warrant a confidentiality instruction has taken place.