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Labor: NLRB says requesting confidentiality during internal investigations violates Section 7 rights

The courts disagree, but employers would do well to be wary

A few weeks ago, we informed you about the National Labor Relations Board’s (NLRB) recent attempts to find violations of the National Labor Relations Act (NLRA) in commonly used employment policies. In that article, we summarized the NLRB’s take on the legality of social media and other employee communication policies. More recently, we wrote an article describing the NLRB’s belief that federal labor policy trumps federal policy regarding arbitration agreements, and several courts’ rejection of that argument. Now the NLRB has combined these two principles in its most recent decision, Banner Health Systems v. Navarro, which found on July 30 that an employer’s policy of suggesting to employees that they maintain confidentiality during internal investigations was unlawful, even where the employer did not threaten to take disciplinary action if the employee breached confidentiality.

In Banner Health, the employee worked as a sterile processing technician, which required the employee to properly care for and handle all surgical instruments, including sterilizing this equipment. The normal sterilization procedures required the employee to clean the instruments with a machine that uses hot water and steam pressure. One day, however, this machine could not be used because of a broken pipe. When the employee spoke to the department supervisor, the supervisor instructed the employee to use a different machine, which uses hydrogen peroxide at low temperatures to sterilize equipment.

Contributing Author

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Christine McLaughlin

Christine Liu McLaughlin is a shareholder in Godfrey & Kahn, S.C.'s Labor & Employment Law Practice Group in the Milwaukee office and is chair of the firm's...

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Contributing Author

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Rufino Gaytán

Rufino Gaytán is an associate in Godfrey & Kahn, S.C.'s Labor & Employment Law Practice Group in the Milwaukee office. Rufino assists private and public employers in addressing...

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