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ARTICLE · 15 MAY 2013

NLRB Issues Guidance On Lawful Confidentiality Language

Drinker Biddle & Reath LLP
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A discussion on a decision issued by the NLRB in a recent case, which amongst other things, held that the employer violated Section 8(a)(1), by restricting employees from discussing any complaint that was then the subject of an ongoing internal investigation.

United StatesEmployment and HR
Marion Cooper
Marion Cooper

On July 30, 2012, the NLRB ("Board") issued a decision in Banner Health System dba Estrella Medical Center, 358 NLRB No. 93 holding, among other things, that the employer violated Section 8(a)(1) (which prohibits employers from interfering, restraining or coercing employees in the exercise of their rights), by restricting employees from discussing any complaint that was then the subject of an ongoing internal investigation.

To minimize the impact of such a confidentiality mandate on employees' Section 7 rights, the Board found that an employer must make an individualized determination in each case that its "legitimate business justification" outweighed the employee's rights to protected concerted activity in discussing workplace issues.  In Banner Health, the employer did not carry its burden to show a legitimate business justification because it failed to make a particularized showing that:

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