NLRB Interferes with Employers' Workplace Investigations
August 7, 2012
By Todd Lyon and Sean Ray

In the latest effort to expand labor law rights, the National Labor Relations Board (NLRB) ruled that simply asking an employee not to discuss ongoing internal investigation matters with co-workers until the investigation is concluded violated the National Labor Relations Act (NLRA). Banner Estrella Medical Center, 358 NLRB No. 93 (2012).

In Banner Estrella Medical Center, a hospital employee responsible for the sterilization and care of surgical instruments was instructed to use a low pressure sterilizer or hot water from the coffee machine to sterilize the instruments. The employee complained to the human resources consultant that the suggested procedures could jeopardize patient safety. The human resources consultant asked the employee not to discuss the matter with other employees while it was investigated, which she frequently did as a matter of course. An administrative law judge (ALJ) determined that the employer's concern with protecting the integrity of its investigations justified the employer's request for the employee to refrain from discussing the investigation until it was completed. In reversing the ALJ, the NLRB found that the employer's "generalized concern with protecting the integrity of its investigations is insufficient" to outweigh employee labor law rights. Instead, the NLRB determined that it is the employer's burden to first determine whether: (1) witnesses need 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. If so, the employer may direct employees to refrain from discussing the matters under investigation.

So where does this leave private sector employers? A policy or rule prohibiting employees from discussing matters under investigation would likely be seen by the NLRB as a violation of the employees' Section 7 labor law rights. Instead, employers should determine on a case-by-case basis whether any testimony or evidence may be fabricated or destroyed during the course of the investigation, or whether any witnesses may need protection. If so, it is advisable to so state at the outset of any investigation and direct employees accordingly. There may also be circumstances where the employer directs confidentiality, but nevertheless allows the employee to discuss the investigation with his or her union representative. Although not addressed in Banner Estrella Medical Center, this approach may help to avoid the NLRB's harsh rule. Employers should contact labor counsel with any questions concerning the NLRB's new ruling and to ensure internal investigation policies are revised to comply with the ever-expanding scope of employee labor law rights.

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