On March 24, 2017, the United States Court of Appeals for the District of Columbia Circuit in Banner Health System v. NLRB, 851 F.3d 35 (D.C. Cir. 2017) again declined to rule on the National Labor Relations Board’s (“NLRB” or “Board”) position that employers cannot prohibit discussions of matters under investigation absent a specific, case-by-case determination supporting the need for confidentiality. As a result, the Board’s position that employers violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting such discussions absent case-specific evidence that “witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up” continues in force, with no clear disapproval from the courts.
In Banner Health, the hospital-employer’s interview script for conducting sexual harassment and hostile work environment investigations included a direction to the interviewer that s/he should request confidentiality from the interviewee regarding the ongoing investigation. Characterizing this script as a categorical nondisclosure policy, the Board held that the script’s direction unlawfully burdened employees’ rights under Section 7 of the NLRA to discuss ongoing disciplinary investigations involving themselves or their coworkers.
The D.C. Circuit disagreed, reasoning there was insufficient evidence the hospital actually had requested confidentiality in every investigation, or that employees were aware of the script’s contents. In so holding, however, the D.C. Circuit stated it would not “opine” on the Board’s case-by-case framework for evaluating investigative confidentiality requirements. See Banner Health, at 44; see also Banner Health Sys., 362 NLRB No. 137, slip op. at * 6 (June 26, 2015) (requiring employers to justify investigative confidentiality rule by showing that nondisclosure is needed to avoid corruption in the investigation at hand because witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up). The court’s statement echoed its previous refusal to rule on this issue in Hyundai American Shipping Agency, Inc. v. NLRB, 805 F.3d 309 (D.C. Cir. 2015).
In a separate part of its decision, the D.C. Circuit did enforce the Board’s ruling that the hospital violated the NLRA by prohibiting all new hires from disclosing “private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.” The court agreed that its own precedents “squarely forbid” such overbroad prohibitions. The court also pointed to Board authority holding that to prohibit discussion of an employee’s working conditions simply because the relevant employee has not authorized the particular discussion “muzzles employees who seek to engage in concerted activity for mutual aid or protection.” Id. at *42.