On July 30, 2012, the National Labor Relations Board (“NLRB”) reached a decision ruling that Banner Health Systems non-union employer’s system of advising its employees to refrain from discussing ongoing internal investigation matters with fellow co-workers violated Section (a)(1) of the National Labor Relations Act. Prior to the Banner Health System decision, businesses had a certain level of discretion in implementing confidentiality requests. However, the freedom to make such requests may no longer be exclusively in the hands of management and may even no longer be permitted without special justification. Companies should take notice.
Courts and administrative agencies are cracking down on blanket employer requests for silence without adequate justification during investigations and the NLRB confirmed this standard in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012) (“Banner”). The Banner decision came after a technician working for a hospital voiced concern to the hospital’s human resources consultant about certain practices he did not feel comfortable following and believed could cause a patient to become sick. After complaining to human resources, he was instructed to not discuss the matter with any of his co-workers while the hospital conducted its investigation. The same human resources consultant would routinely make identical confidentiality requests to other employees who made complaints that were subject to an investigation.
Given the recent Banner decision, corporate response plans must be sensitive to the level of confidentiality involved in internal investigation matters and specify the proper protocol for disclosing information within an organization.
Smart Business spoke with Andrea Gonzalez, senior manager at Cendrowski Corporate Advisors LLC, about the Banner decision and the potential trickle-down effect it could have on business confidentiality processes during investigations.
What should an organization learn from this decision regarding confidentiality issues in internal investigation matters?
Companies will need to have established protocol ready in the event an internal investigation is launched and the protocol will need to address the issue of confidentiality. There may be a valid justification for confidentiality between co-workers in an internal investigation. However, in order to withstand a challenge, such as the one in Banner, companies will need to be able to readily articulate these justifications. Blanket requests are likely to fail, but well-planned and established processes will not only survive any challenges but continue to allow for effective internal investigations consistent with management’s plan. Each corporate response plan needs to take confidentiality issues into account, be planned in advance and be individualized to the present issues so that it is not found to be overly broad or too burdensome.
How can an organization justify a confidentiality request and likely succeed if challenged?
In Banner, the NLRB discussed the appropriate criteria for determining whether an organization has met the burden of justifying its approach. Despite the hospital’s argument that the confidentiality was necessary for protecting the investigation, the Court stated the hospital needed to show (1) it was necessary for the protection of the witnesses; (2) evidence could potentially be destroyed; (3) testimony could be fabricated; or (4) there was a need to prevent a cover-up. The hospital was unable to do so.
Management should keep these factors in mind during the planning phase of their response plans and protocol should reflect this idea. Retroactive planning after an internal investigation has been launched should also be avoided.
In the event of a challenge to the confidentiality request, what is the best course of action?
One of the most important aspects of combating a challenge to a confidentiality request is an organization’s effort to document its basis for each confidentiality request. An individual file should be maintained with detailed and updated information regarding the investigation. A company should also consider engaging counsel to maintain privilege and identify additional information needed to support or contradict its position. A company may never have perfect information, but a well-maintained file is instrumental in its analysis of a challenge and the manner in which it should proceed.
How can an organization ensure their plan for confidentiality requests is implemented properly?
An organization should monitor guidelines or protocols in place and ensure any blanket policies have been removed. From the moment an investigation begins, the organization should continue to revisit their confidentiality requests and evaluate the facts of the current investigation. A check list of all questions and open items should be kept and findings should be reviewed for accuracy and completeness. The communications protocol to personnel involved in the investigation should also be presented to all parties in a clear and concise manner.
How can an organization gain confidence in established confidentially request guidelines and policies?
Organizations can engage a third party to perform a detailed independent review of an ongoing investigation to evaluate whether the established policies and procedures are being adhered to by individuals conducting the investigation. The third party can also assess whether the confidentiality requests would withstand a challenge under Banner.
The feedback provided by the third party would enable the organization to adjust their guidelines and policies to help ensure future confidentiality requests succeed if challenged.
Andrea Gonzalez is a senior manager at Cendrowski Corporate Advisors LLC. Reach her at (866) 717-1607 or firstname.lastname@example.org.
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