The commonplace employer practice of asking employees to refrain from discussing internal investigations with co-workers has come under attack from the National Labor Relations Board. In Banner Health Sys. d/b/a Banner Estrella Med., Ctr., 358 N.L.R.B. No. 93, 7/30/12, the National Labor Relations Board (“NLRB”) held in a 2 to 1 decision that employees’ rights under the National Labor Relations Act to engage in protected concerted activity outweighed an employer’s interest in safeguarding internal investigations. According to the NLRB, suggestions from human resources personnel to employees to refrain from discussing internal complaints with co-workers thus constitute violations of Section 8(a)(1) of the Act. The NLRB found fault with employers’ “blanket approach” in prohibiting discussion. This decision seems to leave open the possibility that an employer may instruct an employee to refrain from such discussion under specific circumstances, but the NLRB did not define those circumstances. To avoid similar Board action, employers should consult with employment counsel about tailoring procedures for internal investigations and interviews.
