NATIONAL LABOR RELATIONS BOARD » Ruling attacks employer’s confidential investigation

An employee has come to you complaining about something that has happened to them at work—like accusing a supervisor or co-worker of harassment or discriminatory treatment. Because an employer has to take complaints like this seriously, you spring into action looking into the employee’s allegations. You want to get to the truth, so you interview the complaining employee, as well as any other employees who may have information relating to the complaint. You ask the complaining employee and the other employees you interview not to discuss the investigation or their interviews with anyone. That’s reasonable, protects the integrity of the investigation, and increases the chances of getting to the bottom of the complaint—right? Not according to the National Labor Relations Board and its July 30th decision in Banner Health System.

When the hospital’s Autoclave steam sterilizer was out of commission, James Navarro’s supervisors at the Banner Estrella Hospital in Phoenix, Arizona, directed him to sterilize labor and delivery surgical instruments using hot water from a break room coffee machine and a different type of sterilizer. Navarro worried this coffee machine sterilizing protocol was not a good idea and expressed his concerns to his supervisor. Navarro’s supervisor became angry and accused him of disobeying directions and acting insubordinately.

Navarro then met with HR representative JoAnne Odell. Navarro explained the circumstances and told Odell he believed his job was at risk. Odell took Navarro’s complaint seriously. In addition to talking with him, Odell interviewed co-workers and supervisors about what had happened. During the investigation, Odell asked Navarro and the other folks interviewed not to discuss the matter.

The National Labor Relations Act protects employees’ rights to take part in concerted activity. That protection applies whether you are a union or non-union employer. Concerted activity can include co-workers discussing concerns and complaints about their employer, their supervisor, or their job. The NLRB ruled that the employer’s instruction to Navarro and others that they not discuss the investigation while it was ongoing violated their right to take part in concerted activity.

So, if the NLRB continues down this path, employers get to choose between protecting the integrity of internal investigations of employee complaints or running the risk of a charge they are violating employees’ rights under federal law. Does that make sense to you?