The Fraud Examiner

Attention Employers: It’s Time to Update Your Confidentiality Policies

NLRB bans blanket confidentiality policies for workplace investigations

By Ron Cresswell, J.D.

August 2015

It is common practice for employers to prohibit their employees from discussing ongoing workplace investigations. Many employers believe that this restriction is necessary to ensure the integrity and fairness of investigations involving employee misconduct. As a result, employers often have policies that require confidentiality in all workplace investigations.

According to a 2015 decision by the National Labor Relations Board (NLRB), these policies are illegal. The decision, known as Banner Estrella, states that employers cannot enforce a blanket policy requiring confidentiality during workplace investigations. Because of this decision, many employers will need to update their policies and human resources (HR) practices.

The NLRA and the NLRB

The NLRB is the federal agency charged with enforcing the National Labor Relations Act (NLRA), which protects the rights of private-sector workers to unionize and to engage in collective bargaining. Section 7 of the NLRA guarantees employees the right to engage in “concerted activity for their mutual aid or protection.” According to the NLRB, this language protects communications between employees regarding the terms and conditions of their employment. That interpretation of Section 7 is the legal foundation of the Banner Estrella decision.

Although the NLRA is usually discussed in connection with labor unions, Section 7 applies to all employees, even if they are not union members.

The 2012 Decision

The Banner Estrella case involved a health care employer that had a policy regarding employee complaints. Under the policy, when an employee made a formal complaint, the employer’s HR consultant was required to read aloud from a form. One of the items on the form instructed the complaining employee not to discuss the investigation with co-workers.

In 2012, the NLRB ruled that the employer violated Section 7 by imposing a blanket confidentiality requirement on all workplace investigations. This decision was overturned on appeal, however, after the U.S. Supreme Court ruled that members of the NLRB were not properly appointed. The case was returned to the NLRB for reconsideration.

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