Labor Law -- 2017

Banner Health Sys. v. NLRB   (D.C. Circuit)

Challenging NLRB decision undermining confidentiality of investigatory interviews

In 2013, the NAM filed an amicus brief in Banner Health Systems’ appeal of an earlier NLRB decision to the D.C. Circuit. The NLRB had ruled that Banner had violated employees' National Labor Relations Act (NLRA) rights to engage in concerted activity due to a blanket policy requesting that employees maintain confidentiality regarding ongoing investigations of employee misconduct. The D.C. Circuit sent the case back to the NLRB which again ruled the confidentially policy violated the NLRA, the blanket policy was improper, and employers must make specific determinations before asking employees to keep complaints confidential. Banner appealed again.

The NAM filed an amicus brief supporting the company, arguing that the NLRB was incorrect because it failed to account for potential challenges employers would face when conducting investigations and ignored its own precedent relating to investigations. The NLRB’s ruling would burden employers by requiring them to justify the need for investigatory confidentiality at a point where such justification would be almost impossible. The court ruled in favor of Banner deciding that the company did not have a blanket policy and did not reach the question of whether a blanket confidentiality policy was in fact a violation of the NLRA. The NAM’s amicus brief supported Banner and states that the NLRB was incorrect in its decision because it failed to take into account the challenges employers will now face when conducting an investigation. For example, with the NLRB’s decision an employer may not be able to uncover the entire story because employees will not come forward if they know the investigation is not confidential. Additionally, the amicus brief points out the NRLB ignored its previous decisions on investigations and overturned decades of its own precedent on the matter. The NLRB’s decision placed an enormous burden on employers to justify the confidentiality of their investigations prior to interviewing all the witnesses or even assessing the situation. We urged the Court to reject the NLRB’s novel and impractical standard narrowing the business reasons for requesting confidentiality in workplace investigations.

On March 31, 2017, the DC Circuit reversed the NLRB’s decision in Banner Health.

Related Documents:
NAM amicus brief  (January 21, 2016)


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