NLRB: Social Media Policy Revised? Time to Take a Look at the Way you Conduct Internal Investigations!


by Abbey Moland

Moland, Abigail
amoland@mcgrathnorth.com
(402) 341-3070

Just as you finalize your Social Media Policy to comply with the NLRB’s series of guidance memoranda, the Board is now taking aim at the way employers conduct internal investigations and the confidentiality expectations placed on employees participating in those investigations.

On July 30, 2012, the NLRB issued its decision in Banner Health System, 358 NLRB No. 93 (2012), which further extends the reach of the National Labor Relations Act (“NLRA”) into the realm of internal workplace policies and how employers conduct investigations of employee misconduct.

In Banner Health System, the employer followed a routine internal investigations procedure wherein it asked employees involved in those investigations not to discuss pending investigations with their coworkers. The Administrative Law Judge (“ALJ”) concluded that the Human Resources representative’s mere “suggestion” that employees not discuss an ongoing investigation with one another was intended to protect the integrity of the investigation, was based on legitimate business considerations and was unaccompanied by any threat of discipline of other adverse employment action. Consequently, the ALJ ultimately concluded that Banner Health’s confidentiality requirement did not interfere with the employee’s Section 7 rights to participate in concerted activity.

Despite the apparently sound justifications for the ALJ’s findings, in a 2 to 1 decision, the NLRB reversed. Relying on the same set of facts, the NLRB concluded that it was a violation of the NLRA for an employer to instruct or request participants in an internal investigation not to discuss the investigation with other employees, unless the employer can first establish that: (1) a witness needs 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.

Because the employer’s confidentiality policy in Banner Health System was a blanket rule, rather than applied on a case-by-case basis, the Board found that the employer was in violation of Section 8(a)(1) of the NLRA. Furthermore, the fact that the employer’s policy was a mere “suggestion” communicated to employees by the company’s HR representative, rather than a workplace rule was of no consequence to the Board, finding that the blanketed suggestion alone “had a reasonable tendency to coerce employees, and so constituted an unlawful restraint on Section 7 rights.” Likewise, the Board concluded that the fact that the employer had not threatened discipline for a violation of the confidentiality instruction was irrelevant because the law does not require a threat of discipline in order to be considered unlawful.

So, what’s an employer to do? In essence, the Board’s decision in Banner Health System should not drastically alter the way employers approach employee confidentiality during internal investigations. While Banner Health System limits both union and non-union employers’ ability to protect the confidentiality of its internal investigations, it does not altogether prevent an employer from instructing employees not to discuss an ongoing investigation with other employees.

One thing the decision does make clear: any practice which includes a blanket confidentiality instruction to employees must be abandoned. Instead, employers must identify, at the outset of every investigation, which of the four factors noted by the NLRB in Banner Health System justifies restricting the employee’s right to engage in speech with coworkers about the terms or conditions of their employment. Employers should also adequately document the bases for any confidentiality requests as part of any internal investigation.

In light of the NLRB’s ruling, employers should review their current internal investigation policies and procedures to determine whether its confidentiality provisions are overbroad or could be considered prohibited “blanket” policies under the Board rule announced in Banner Health System.

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