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The National Labor Relations Board, in Banner Health Systems d/b/a Banner Estrella Medical Center, recently obtained a favorable administrative law ruling stating that confidentiality requirements surrounding workplace harassment investigations violate the National Labor Relations Act.  In particular, the administrative law judge found that employer demands regarding the protection of witnesses and statements by employees could prevent the discussion of workplace concerns (between employees) and thereby limit union organizing.  In effect, the Board was arguing that allowing confidential investigations under specific EEOC guidelines has the unintended consequence of precluding speech that may be necessary for union organizing. 

This is a surprising and, in some ways, even a shocking decision, as it specifically contradicts EEOC policy promoting confidentiality, and overturns handbook language that has been in place for years.  The decision also creates confusion regarding the proper methods for conducting internal investigations, and places investigators in additional legal jeopardy.  In effect, the Board is saying that employees involved in internal investigations “may” remain silent about the allegations and evidence, but only at their option.  Management, conversely, must still follow the EEOC guidelines – setting up some obvious conflicts.  For example, a disgruntled employee can tell co-workers about claims of management misconduct, but the employer is still bound by the EEOC confidentiality requirements. 

While the Circuit Courts will obviously be heard on this issue, it creates unnecessary confusion about workplace speech, and new liability for companies who merely re-published guidelines produced by another agency of the federal government.

The administrative law judge, obviously recognizing the conflict, stated that his only requirement was to interpret the National Labor Relations Act, not any other law that might be promulgated by the federal government.