By Jill Porcaro and Andrew Crane

As a well-intentioned employer, you know it is best to promptly investigate employee claims of workplace harassment  and other employee misconduct.  Due to the obvious sensitive nature of these types of investigations, you implement a policy prohibiting your employees from discussing the investigation with anyone other than the investigator.  You believe that your employees will feel more comfortable disclosing truthful information to the investigator knowing their confidences are assured.  Great policy, right?

• Not exactly.  Now, more than ever, the National Labor Relations Board (the “Board”) is cracking down on blanket confidentiality policies that prohibit employees from discussing investigations of employee misconduct, including the right to discuss discipline or disciplinary investigations involving their fellow employees, on the grounds that these policies “chill” employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”).

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), an employer had a policy of prohibiting its employees who made complaints from discussing the matter with their coworkers while the investigation was ongoing.  The Board held that this rule violated the NLRA because an employer must justify a prohibition by showing a “legitimate business justification that outweighs employees’ Section 7 rights.”

Well then, I’ll just nicely suggest to my employees not discuss the details of any investigation.  That ought to solve the problem, right?
Continue Reading A Rock and a Hard Place: Keeping a Lid On Internal Workplace Investigations