Is Your Employer’s Investigation Gag Order Illegal? Why Investigations Might Not Be Confidential Anymore

You may have heard management-side folks yelling, “The sky is falling! The sky is falling!” recently. They’re totally freaked out about the NLRB’s recent ruling in Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro. Now, anytime the dark side is upset, that usually excites me to no end. This time, I’m smiling but not ecstatic. I think all the wailing and teeth gnashing over this decision is much ado over nothing much new. Still, good news is rare for employees, so I thought I’d share.

In Banner, the company’s HR consultant routinely told anyone making any complaint not to discuss the complaint with coworkers while the company investigation was ongoing. In this case, it was a complaint about safety issues. The Board found that the blanket instruction given to employees violates Section 7 of the National Labor Relations Act, which says employees are allowed to discuss working conditions, and Section 8 of the Act, which says employers aren’t allowed to prevent employees from doing so.

Oh, woe is me! says every management-side lawyer in the country. What will we do now? We can’t ever tell anyone ever again to keep any investigation confidential. Calamity will ensue.

Bollocks.

It’s been the law for a long time that employers had to show a legitimate reason to issue a confidentiality order on employees for investigations. The Board clarified, saying, “it was the Respondent’s burden ‘to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.’ [citing an older case saying the exact same thing]. The Respondent’s blanket approach clearly failed to meet those requirements.”

Nothing new to see here folks.

So yes, employers need to minimize the impact on employees’ right to discuss working conditions by only using gag orders for a legitimate purpose, and only for the time they actually need to accomplish that purpose. If they’re investigating embezzlement and the employee they’ve just interviewed tells them that Joe Schmo in Accounts Receivable has a second set of books he keeps in a locked file cabinet, then they can tell their witness not to discuss what he said with Joe Schmo until they can secure the file cabinet and interview Joe Schmo.

What they can’t do is tell employees that they aren’t allowed to warn coworkers that they’re working with asbestos; that the super-heated superglue their supervisor tells them to use to repair cabinets releases cyanide as a byproduct of the heating (true fact – never heat superglue unless you’re a forensics expert in a police department); or that the supervisor in Receiving is a grabber.

I’ve seen these kind of confidentiality rules and even contractual provisions used as a weapon against employees. They complain about, say, sexual harassment and suddenly are banned from discussing with female coworkers that their boss is a harasser. They can, and frequently are, fired if the employer claims they think the employee violated confidentiality.

The National Labor Relations Act says employees are allowed to discuss working conditions, which darned well should include being able to compare notes on the office letch, dangerous working conditions, and illegal practices. It’s about time the practice of putting a gag order on employees was shut down for good.

The ban isn’t across the board. First of all, supervisors can still be required to keep investigations confidential without consequences. The NLRA doesn’t apply to supervisors. Second, because the employer can show a legitimate reason to keep things confidential, such as protecting a witness, the danger of evidence being destroyed before the employer can secure it, preventing a cover-up, or the danger of fabricated testimony, nothing much will change. I suspect many employers will claim the last reason as their justification for demanding most employees remain gagged in investigations, so I’m willing to bet we’ll continue to see cases where employees challenge their employer’s right to shut them up about dangerous, discriminatory, or illegal practices.

Let’s give three cheers to NLRB for saying no to this coercive and retaliatory practice.