“Do Not Discuss” Instruction to Employees During Internal Investigation May be Unlawful

When conducting internal personnel investigations into allegations of workplace misconduct or policy violations, employers routinely instruct employees who participate in the investigation process to refrain from discussing the investigation with their co-workers.  This “do not discuss” admonition is given for a number of legitimate business reasons, such as upholding the integrity of the investigation, promoting candor, and minimizing  disruption to the workplace.  A recent decision of the National Labor Relations Board (“NLRB”), Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012) has criticized this long-standing practice on the basis that a blanket “do not discuss” rule is inconsistent with an employee’s Section 7 rights to engage in protected concerted activity for mutual aid and protection.  While the Board objected to a blanket rule, it did recognize that there may be extenuating circumstances in a particular investigation that may warrant the issuance of a confidentiality instruction.  Unfortunately, the NLRB provided little guidance on what would constitute extenuating circumstances or how employers are expected to apply this rule in the context of a “real world” personnel investigation.

While this NLRB decision raises more questions than provides answers, there is one clear takeaway:  blanket “do not discuss” admonitions issued to employees during an internal personnel investigation may be unlawful under the NLRA.  Therefore, proceed with caution if you adopt a “do not discuss” rule in connection with your internal investigation.