Preserving Integrity of an Ongoing Investigation May Be Unlawful

Written by Robert G. Brody and Abby M. Warren on August 20, 2012

Historically, management has been allowed to prohibit employees from discussing an ongoing investigation with co-workers and others, to preserve the integrity of the investigation.  The common refrain at the end of such an interview from human resources was “Please do not discuss what we have talked about until the investigation is completed.”  This must change as of July 30, 2012.

The National Labor Relations Board (“NLRB”) decided Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, where an employee worked as a sterile technician at a hospital.  One day, due to a broken steam pipe and lack of hot water, the employee was told to follow alternative sterilization procedures which included using hot water from a coffee machine.  The employee expressed concerns to his supervisors and co-workers about these instructions because he believed these procedures were improper and could endanger patient safety.  Accordingly, he did not follow the instructions which led to minor disciplinary action.  The employee’s yearly performance evaluation indicated he was not fully meeting expectations based on complaints of co-workers regarding this incident and his sharing concerns that other employees used those alternative procedures.  An investigation into those complaints was conducted.

The NLRB found that instructing employees not to speak to co-workers about an ongoing investigation is a violation of the National Labor Relations Act which prohibits employers from interfering with employees’ collective actions designed to avoid, among other things, unfair discipline.  These rights are known as “Section 7” rights.  The NLRB held the employer must show it has a “legitimate business justification that outweighs employees’ Section 7 rights” in order to avoid violating employees’ rights.  The NLRB found the employers’ “generalized concern with protecting the integrity of its investigations” insufficient to meet this test.

Unfortunately, this decision compromises the ability of management to conduct effective investigations into workplace issues.  The good news is the decision suggests requiring confidentiality is allowed if some specific reason exists to believe confidentiality is needed.  A specific concern could be particular evidence must be preserved, certain witnesses need protection or particular evidence may be destroyed.  The practical problem is the employer likely won’t know those specific details until the investigation is underway, which may be too late.

Hopefully, this decision will be appealed and overturned.  Until then, this decision will impact the ability of management to investigate employee complaints and allegations of misconduct.  Management should consult counsel on how to conduct effective internal investigations while complying with this decision.

Brody and Associates regularly advises its clients on matters involving internal investigations and the National Labor Relations Act.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More