Tag Archives: HR investigations

NLRB Finds Application of Blanket Confidentiality Requirement During Pending HR Investigations Unlawful

by: D. Martin Stanberry and Donald S. Krueger

In the latest in a series of National Labor Relations Board (“Board”) decisions that expands its sphere of influence in non-unionized workplaces, a divided three-member panel of the Board found that an employer’s routine request that employees not discuss matters under investigation with their co-workers violated Section 8(a)(1) of the National Labor Relations Act because it “had a reasonable tendency to coerce employees.” Banner Health System 358 NLRB No 93 (July 30 2012)

In reaching its conclusion, the Board brushed aside the employer’s “generalized concern with protecting the integrity of the investigation.” The Board did suggest, however, that confidentiality may be appropriate, and lawful, if the employer can show: (1) the need to protect witnesses; (2) a likelihood that evidence may otherwise be destroyed; (3) the threat that subsequent testimony would be fabricated; or (4) the need to prevent a “cover-up.” Unfortunately, the Board offered no guidance as to what type of proof (general or specific, subjective or objective) is required to meet this burden.

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