NLRB Challenges Long-Established Investigation Best Practice

Employers routinely conduct investigations of workplace misconduct or other incidents. When doing so, many will direct employee witnesses or complainants not to discuss the investigation with other employees. There are a number of legitimate reasons for this, all aimed at protecting the integrity of the investigation and facilitating the search for the truth, among other things. A recent decision of the National Labor Relations Board, extending prior Board precedent, has criticized this routine and best practice direction by investigators.

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the employer's human resources consultant routinely asked employees making a complaint not to discuss the matter with their coworkers while the employer's investigation was ongoing. It was a part of the employer's standard written "introduction for all interviews." The administrative law judge who heard the case upheld this practice,